Ricky Brown v. Commissioner Social Security
PUBLISHED AUTHORED OPINION filed. Originating case number: 6:14-cv-04486-DCN. . [16-1578]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICKY E. BROWN,
Plaintiff - Appellant,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District Court of South Carolina, at
Greenville. David C. Norton, District Judge. (6:14-cv-04486-DCN)
Argued: March 23, 2017
Decided: September 29, 2017
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the majority opinion, in
which Judge Wynn joined. Judge Niemeyer wrote a dissenting opinion.
ARGUED: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville,
South Carolina, for Appellant.
Melissa K. Curry, SOCIAL SECURITY
ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Timothy
Clardy, DENNISON LAW FIRM, PC, Greenville, South Carolina, for Appellant. Nora
Koch, Regional Chief Counsel, Taryn Jasner, Supervisory Attorney, Office of the
General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania; Beth Drake, Acting United States Attorney, Marshall Prince, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
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KING, Circuit Judge:
Ricky E. Brown appeals from the judgment of the district court in South Carolina
affirming the Commissioner of Social Security’s denial of his claim for disability
insurance benefits. In pursuing his appeal, Brown contends that the administrative law
judge (the “ALJ”) erred in various respects, including by improperly evaluating the
medical opinion evidence and failing to heed the “treating physician rule.” As explained
below, we agree that the ALJ erred and therefore vacate the judgment of the district court
and remand with instructions for that court to remand for further proceedings.
Brown filed his claim for disability insurance benefits in August 2008, alleging
that the onset of his disability occurred on July 19, 2006, when he was injured in a
workplace accident and became unemployed. Brown asserts that he has not been able to
work since the accident because of chronic pain and both physical and mental
impairments. For Brown to qualify for disability insurance benefits, there must be a
finding that he was disabled on or before his date last insured, June 30, 2011. Brown was
forty-two years old at the time of his workplace accident and forty-seven years old on his
date last insured. His primary source of income since the workplace accident has been
workers’ compensation benefits.
As for Brown’s claim for disability insurance benefits, the Commissioner denied
the claim initially in January 2009 and upon reconsideration in October 2009.
December 2009, Brown requested an ALJ hearing, which was conducted in August 2010.
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Shortly after the hearing, in September 2010, the ALJ issued a decision denying the claim
(the “First ALJ Decision”). Brown sought review of the First ALJ Decision by the Social
Security Administration’s Appeals Council. In May 2011, however, the Appeals Council
denied Brown’s request for review.
Brown thereafter filed a complaint against the
Commissioner in the District of South Carolina pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the First ALJ Decision. In July 2012, the district court reversed the
First ALJ Decision and remanded for further proceedings. See Brown v. Comm’r Soc.
Sec. Admin., No. 6:11-cv-01500 (D.S.C. July 24, 2012), ECF No. 26.
Nearly a year later, in May 2013, the ALJ conducted another hearing. By a
decision issued in February 2014, the ALJ again denied Brown’s claim for disability
insurance benefits (the “Second ALJ Decision”).
Brown’s subsequent request for
Appeals Council review was denied in September 2014. At that time, the Second ALJ
Decision became the final decision of the Commissioner.
In November 2014, Brown initiated this civil action against the Commissioner in
the District of South Carolina, seeking judicial review of the Second ALJ Decision. In
January 2016, the magistrate judge issued a report recommending that the Second ALJ
Decision be affirmed. See Brown v. Comm’r Soc. Sec. Admin., No. 6:14-cv-04486, ECF
No. 21 (D.S.C. Jan. 29, 2016) (the “Report”). By an order of March 2016, the district
court adopted the Report and affirmed the Second ALJ Decision. See Brown v. Comm’r
Soc. Sec. Admin., 6:14-cv-04486 (D.S.C. Mar. 30, 2016), ECF No. 26 (the “Order”).
Brown has timely appealed, and we possess jurisdiction pursuant to 28 U.S.C. § 1291 and
42 U.S.C. § 405(g).
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Before delving into the particulars of this case, we identify some of the legal
principles essential to the analysis. Specifically, we first outline the five-step process —
established by the relevant regulations — that an ALJ is obliged to utilize in assessing a
claim for disability insurance benefits. We then discuss the standards for evaluating
medical opinion evidence, including the “treating physician rule” embodied in those
The five-step process for assessing a claim for disability insurance benefits is
spelled out in 20 C.F.R. § 404.1520(a)(4)(i)-(v).
At steps one and two, the ALJ
determines whether the claimant (1) is currently gainfully employed and (2) has a severe
impairment, i.e., an impairment that significantly limits the claimant’s physical or mental
ability to perform basic work activities. The claimant bears the burden of proof with
respect to those initial steps. If the claimant is employed or does not have a severe
impairment, he is not disabled and the analysis ends. See Monroe v. Colvin, 826 F.3d
176, 179 (4th Cir. 2016). When the analysis proceeds to step three, the ALJ decides
whether the claimant has an impairment that meets or equals an impairment listed in the
regulations for being severe enough to preclude a person from doing any gainful activity.
The step three “burden remains on the claimant, and he can establish his disability if he
shows that his impairments match a listed impairment.” Id. (citations omitted).
If the claimant fails at step three, the ALJ must then determine the claimant’s
residual functional capacity (“RFC”), which has been defined as “the most you can still
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do despite your [physical and mental] limitations.” See 20 C.F.R. § 416.945(a)(1). In
making the RFC determination, the ALJ must identify the claimant’s “functional
limitations or restrictions” and assess his “work-related abilities on a function-byfunction basis, including the functions listed in the regulations.” See Monroe, 826 F.3d at
179 (internal quotation marks omitted). The ALJ “must consider all of the claimant’s
medically determinable impairments of which the ALJ is aware, including those not
labeled severe at step two.” Id. (alterations and internal quotation marks omitted).
Additionally, the claimant is entitled to have the ALJ “consider all your
symptoms, including pain, and the extent to which your symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.” See 20
C.F.R. § 404.1529(a); see also Lewis v. Berryhill, 858 F.3d 858, 862 (4th Cir. 2017).
Where “the medical signs or laboratory findings show that you have a medically
determinable impairment [or impairments] that could reasonably be expected to produce
your symptoms, such as pain, [the ALJ] must then evaluate the intensity and persistence
of your symptoms so that [the ALJ] can determine how your symptoms limit your
capacity for work.” See 20 C.F.R. § 404.1529(c)(1). In so doing, the ALJ must “assess
the credibility of the claimant’s statements about symptoms and their functional effects.”
See Lewis, 858 F.3d at 866 (citing, inter alia, 20 C.F.R. § 404.1529(c)(4) (providing, e.g.,
that the ALJ will consider whether there are “any conflicts between your statements and
the rest of the evidence, including your history, the signs and laboratory findings, and
statements by your medical sources or other persons about how your symptoms affect
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After determining the claimant’s RFC, the ALJ proceeds to step four, “where the
burden rests with the claimant to show that he is not able to perform his past work.” See
Monroe, 826 F.3d at 180. If the claimant succeeds at step four, the ALJ finishes at step
five, where the burden shifts to the Commissioner.
In order to withhold disability
insurance benefits, the Commissioner must prove, “by a preponderance of the evidence,
that the claimant can perform other work that exists in significant numbers in the national
economy, considering the claimant’s [RFC], age, education, and work experience.” Id.
(internal quotation marks omitted).
If the Commissioner satisfies that burden, the
claimant is not disabled and his claim for benefits must be denied.
For claims — like Brown’s — filed before March 27, 2017, the standards for
evaluating medical opinion evidence are set forth in 20 C.F.R. § 404.1527.
regulation defines “medical opinions” as “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.” See 20 C.F.R. § 404.1527(a)(1). For purposes of
the regulation, an “acceptable medical source” includes a licensed physician or
psychologist. Id. § 404.1502(a). The regulation provides that the ALJ “will evaluate
every medical opinion” presented to him, “[r]egardless of its source.” Id. § 404.1527(c).
Generally, however, more weight is given “to the medical opinion of a source who has
examined you than to the medical opinion of a medical source who has not examined
you.” Id. § 404.1527(c)(1).
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Significantly, the regulation embodies a treating physician rule that accords the
greatest weight — controlling weight — to the opinions of the claimant’s “treating
sources.” See 20 C.F.R. § 404.1527(c)(2). The regulation defines a “treating source” as
“your own acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing treatment
relationship with you.” Id. § 404.1527(a)(2). The regulation explains:
Generally, [the ALJ gives] more weight to medical opinions from your
treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.
Id. § 404.1527(c)(2). The regulation promises that the ALJ “will always give good
reasons in [his] decision for the weight [he gives] your treating source’s medical
Under the regulation’s treating physician rule, controlling weight is to be accorded
to “a treating source’s medical opinion on the issue(s) of the nature and severity of your
impairment(s)” if that opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record.” See 20 C.F.R. § 404.1527(c)(2). When a treating source’s
medical opinion is not given controlling weight, five factors are utilized to determine
what lesser weight should instead be accorded to the opinion. The first two of those
factors are specific to treating sources:
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“Length of the treatment relationship and the frequency of
examination,” see 20 C.F.R. § 404.1527(c)(2)(i); and
“Nature and extent
The other three factors are used to determine the weight to be given to any medical
opinion, whether from a treating or nontreating source:
“Supportability” in the form of the quality of the explanation
provided for the medical opinion and the amount of relevant
evidence — “particularly medical signs and laboratory findings” —
substantiating it, id. § 404.1527(c)(3);
“Consistency,” meaning how consistent the “medical opinion is with
the record as a whole,” id. § 404.1527(c)(4); and
“Specialization,” favoring “the medical opinion of a specialist about
medical issues related to his or her area of specialty,” id.
Additionally, any other factors “which tend to support or contradict the medical opinion”
are to be considered. Id. § 404.1527(c)(6).
The regulation identifies several issues that are reserved to the Commissioner,
including whether a claimant’s impairment matches a listed impairment, the claimant’s
RFC, and whether the claimant ultimately meets the statutory definition of disabled. See
20 C.F.R. § 404.1527(d). Thus, for example, when a medical source renders an opinion
that a claimant is “‘disabled’ or ‘unable to work,’” the ALJ will consider “all of the
medical findings and other evidence that support” the medical source’s opinion, but will
not necessarily make a favorable disability determination. Id. § 404.1527(d)(1).
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Here, as previously noted, the Commissioner’s final decision is the Second ALJ
Decision of February 2014 denying Brown’s claim for disability insurance benefits. 1 At
steps one and two of the five-step process for assessing such a claim, the ALJ determined
in Brown’s favor that he had been unemployed since the alleged onset of his disability in
July 2006 and had multiple severe impairments that significantly limited his ability —
both physically and mentally — to perform basic work activities. The ALJ identified
Brown’s severe impairments as the following: degenerative joint disease of the hips and
right shoulder; degenerative disc disease of the lumbar and cervical spine; depression;
anxiety; dysthymic disorder (a chronic depressive mood disorder); and a somatoform
disorder (one of a group of psychiatric disorders that cause unexplained physical
symptoms, including pain). At step three, however, the ALJ found that none of Brown’s
impairments matched an impairment listed in the regulations for being severe enough to
preclude a person from doing any gainful activity. The ALJ had specifically considered
major dysfunction of a joint; affective disorders; and somatoform
The ALJ proceeded to conduct an RFC assessment and found, inter alia, that
Brown could lift or carry ten pounds, stand two of eight hours, walk two of eight hours,
The Second ALJ Decision is found at A.R. 417-41. (Citations herein to “A.R.
__” refer to the contents of the Administrative Record.)
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sit six of eight hours, and frequently handle, finger, and reach overhead. The ALJ also
found that, because of Brown’s mental impairments and possible side effects from his
medications (including narcotic pain medications), he should have no more than
occasional public contact and avoid moderate exposure to hazards. Additionally, to
account for difficulties in maintaining concentration, persistence, and pace, the ALJ ruled
that Brown “can only perform simple 1-2 step tasks.” See Second ALJ Decision 7.
Significantly, the ALJ rejected evidence reflecting that Brown was not capable of
performing any job because of his chronic pain and mental impairments. Under the
evidence rejected by the ALJ, Brown could not maintain the concentration, persistence,
and pace required for even unskilled sedentary work, and he would require too many
daily rest breaks, as well as too many monthly sick days, to sustain full-time
Premised on its RFC determination, the ALJ recognized at step four that Brown
was unable to perform any past work as a millwright and maintenance worker. At step
five, however, the ALJ concluded that Brown could perform certain unskilled sedentary
work, such as work as a packer, assembler, inspector, or surveillance monitor. The ALJ
then pronounced that Brown was not disabled “at any time from July 19, 2006, the
alleged onset date, through June 30, 2011, the date last insured.” See Second ALJ
Decision 25. Brown’s claim for disability insurance benefits was thereby denied.
The evidence before the ALJ included a questionnaire completed by Brown in
October 2008 in support of his claim for disability insurance benefits; Brown’s testimony
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at the first ALJ hearing in August 2010 and the second ALJ hearing in May 2013; 2 the
parties’ documentary medical opinion evidence; and the second ALJ hearing testimony of
the Commissioner’s medical expert and a vocational expert.
We give the greatest
attention herein to evidence relevant to the ALJ’s RFC determination, particularly as it
relates to the effect of Brown’s physical pain on his ability to work.
As Brown explained at the first ALJ hearing, he was a South Carolina resident in
his forties who was divorced and lived alone. Although Brown’s highest level of formal
education was the eighth grade, he later passed a General Educational Development test
and secured an associates degree in industrial mechanics.
Until his July 19, 2006
workplace accident, Brown had worked steadily since his early teens. At the time of the
accident, he was employed as a millwright by an entity called Consolidated Southern
Industrial, installing heavy industrial machinery.
While using a hammer drill on a
concrete floor, the drill unexpectedly hit a hard object and jerked Brown sharply.
Following the accident, Brown was bedridden for nine months at his mother’s house. He
then resumed living alone but continued to suffer from chronic pain in his back, left
shoulder and arm, and right hip and leg; occasional pain in his left hip; and depression
At the second ALJ hearing, the ALJ explained that he had “reviewed [Brown’s]
prior testimony” and, thus, there was no “need to go over anything that we’ve gone over
in the past.” See A.R. 452. The ALJ advised Brown, however, that if he wanted to
present “anything new,” he could do so. Id.
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and anxiety. He had frequent muscle spasms in his right leg that awakened him when
they occurred at night, and he had also developed arthritis in his hands.
Brown testified that — to relieve pain in the mornings while waiting for his pain
medication to take effect — he normally alternated between sitting (about twenty minutes
at a time), lying down (about twenty minutes at a time), standing (no more than ten to
fifteen minutes at a time), and walking (about five to ten minutes at a time). While he
might achieve some relief in parts of his body, he often aggravated the pain in others.
Just about every afternoon, Brown would drive three-quarters of a mile to his mother’s
house, sit with her for ten to fifteen minutes, and then return home to lie down for thirty
to forty minutes. Otherwise, he normally had to lie down ten to fifteen minutes every
hour during the afternoons. He sometimes had to use a cane while walking.
Brown also testified during the first ALJ hearing that, at home, he would watch
television, read, and watch birds. He had “a few coins” that he had “order[ed] from the
U.S. Mint,” and when he had “pocket change,” he “might look at it with a magnifying
glass.” See A.R. 58. Brown could bathe himself, and he shaved and brushed his teeth,
sometimes needing to sit on a stool to finish doing so. He had to rely on his sister to
wash his dishes and clean his house, and on his nephew or a friend to mow his lawn.
Two or three days a week, Brown had to ask his brother-in-law to feed his dog, which
stayed outdoors. Other days, Brown would walk outside to feed his dog, and he would
drive less than a mile to retrieve his mail from the post office and purchase crackers and a
drink for lunch.
He made instant coffee in the mornings, often fixed cereal or a
microwave meal for dinner, and occasionally did laundry. He shopped for groceries
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approximately twice a week, but only in smaller stores like Dollar General, because
larger stores like Walmart were “just too big” for him to walk through. See id. at 56, 60.
In addition to visiting his mother, Brown would sometimes visit his sister or cousin. He
picked up a sandwich every couple of weeks at a Subway restaurant where his cousin’s
daughter worked, and he ate at a café once or twice a month. When Brown’s then-tenyear-old daughter visited him, he would often take her and his great-niece to his brother’s
swimming pool, where his brother would watch the girls. Brown also sometimes took his
daughter and great-niece to “the store,” “the park,” or “the lake.” See id. at 54. Although
Brown did not specify the distances travelled to those locations, he testified that he had
trouble driving more than short distances and that he sometimes had to use his left foot to
operate the accelerator and brake. Brown recounted driving fifty miles to see a doctor the
previous week and thereby exacerbating the pain in his right leg. He also testified that
his pain generally intensified with physical activity.
In the questionnaire he had completed nearly two years before the first ALJ
hearing, Brown reported attending church three days a week for one to two hours at a
time. He also shared that he practiced playing his guitars daily and performed gospel
music in public on Friday nights, but only for thirty minutes at a time because of arm and
shoulder pain and the arthritis in his hands.
During the first ALJ hearing, Brown
mentioned going to church the previous day, but did not say whether he was still
regularly attending church three times a week. He testified, however, that he could
“hardly play” his guitars anymore. See A.R. 61.
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As of the second ALJ hearing, according to Brown, his pain had progressively
worsened and his daily activities had thereby been further curtailed. He was suffering
from frequent pain in his left shoulder, lower back, and right hip, and constant pain in his
right shoulder, right leg, and right foot. The pain in Brown’s right shoulder was a new
development since the first ALJ hearing and was unrelated to his 2006 workplace
accident. On a pain scale of one to ten — with ten being the highest — Brown rated the
pain in his left shoulder, lower back, right leg, and right foot as a six to eight, and the
pain in his right shoulder and right hip as a seven to eight. He was still sometimes
awakened at night by muscle spasms in his right leg, which he rated a seven to nine.
Because of his overall pain, Brown could sleep no more than four hours at a time. While
awake, he continued to alternate between sitting, lying down, standing, and walking.
Brown testified that he could sit comfortably in one position for about twenty minutes,
stand in one position for twenty to twenty-five minutes, and walk for about ten minutes.
He needed to lie down for about fifteen to twenty minutes every hour.
As before, Brown would heat up food in his microwave and sometimes do
laundry. He still could not do housework like washing dishes and vacuuming; that was
now done by a friend, rather than Brown’s sister. Brown continued to take care of his
own hygiene, but he now always had to sit on a stool to shave. About four times a week,
he would drive to pick up his mail and something to eat. He no longer visited his mother
and other family members, however, and he shopped for groceries for just thirty minutes
once a week. Brown had stopped going to church about a year before the second ALJ
hearing, because he could not “sit there in the service that long.” See A.R. 481. Brown’s
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mother now brought his daughter to visit him every other weekend, and they would stay
in Brown’s home where the daughter played on a computer. Brown reported ongoing
pain from arthritis in his hands that affected his grip and had caused him to quit playing
his guitars altogether. Because of the pain in his fingers, Brown could use the computer
just “a little with [a] mouse pad that you slide your hand on,” and could not “use a regular
mouse.” Id. Brown still possessed his coin collection, but he explained that he had not
“done anything [with his coins] lately. They’re in a box.” Id. at 482. He read a
meditation book and the Bible for about twenty minutes a day, and he listened to music
and watched television for about six hours a day.
During the second ALJ hearing, the ALJ asked Brown if he had exercised since
his workplace accident, and Brown answered, “No, sir.” See A.R. 485. The ALJ then
asked, “Can you tell me why your doctors report that you have been exercising and you
tell me you have not?” Id. Brown responded, “I just walk to the mailbox and back.
That’s exercise, I guess.” Id. Pressed by the ALJ, Brown expounded: “I talked to [a
doctor] about trying to walk on a treadmill, but I never really could do it. I tried it once,
and I had to stay in a bed a couple of days from trying . . . . That’s the only thing I can
think of.” Id. The ALJ then queried, “You were asked the question by [your lawyer]
whether you do any home repairs or maintenance around your home. And you haven’t
done any since your onset date to the present time?” Id. Again, Brown answered, “No,
sir.” Id. The ALJ continued, “Can you tell me why your doctors report that you were
doing work on your home, doing repairs?” Id. In response, Brown stated, “I don’t know
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what type of repairs you’re referring to.” Id. The ALJ then moved on from the topic of
Prior to the second ALJ hearing, Brown had submitted medical opinion evidence
reflecting that his chronic pain stemmed not only from his physical impairments, but also
from his somatoform disorder. At the outset of the second ALJ hearing, Brown’s lawyer
emphasized to the ALJ that “this is really [a] pain case.” See A.R. 452. The lawyer
specifically linked Brown’s chronic pain to both his physical impairments and
somatoform disorder, and noted that “it seems that everybody that has physically
evaluated Mr. Brown has concurred that he would be limited, at the very least, with his
concentration and persistence due to his pain.”
Indeed, Brown’s treating and
examining sources consistently opined that Brown’s chronic pain rendered him unable to
work, and none of them questioned Brown’s credibility with respect to the intensity and
frequency of his pain.
Dr. David Tollison, Ph.D., a psychologist and clinical pain expert, had examined
Brown in August 2010 and diagnosed his “Somatoform Disorder (pain disorder
associated with both psychological factors and a general medical condition),” as well as
“Major Depressive Disorder, superimposed on a chronic dysthymic disorder.” See A.R.
377. Dr. Tollison administered two psychological tests and concluded that Brown’s
results were “valid with no suggestion of symptom embellishment.” Id. Based upon
those test results, as well as his evaluation of Brown and review of Brown’s medical
records, Dr. Tollison opined as follows:
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Mr. Brown is expected to have difficulty maintaining concentration and
attention over time, being distracted by his co-morbid symptoms of chronic
pain and clinical depression. In addition, he is expected to require frequent
and unscheduled rest periods. Given that pain intensity is increased with
physical activity, it is unlikely he could meet typical production standards
or regular work attendance. Work pressures, stresses, and demand
situations are expected to result in deterioration both in physical and
psychological functioning. His condition is chronic and expected to
continue over the next twelve or more months. If awarded funds, Mr.
Brown is capable of managing funds.
Id. at 378. Notably, the Commissioner’s own consulting psychologist, Dr. Brian Keith,
Ph.D., had previously diagnosed Brown with “Depression Versus Pain Disorder with
Depression” after examining him in September 2009. Id. at 334. Consistent with Dr.
Tollison, Dr. Keith recognized that Brown’s “ongoing pain . . . may make it difficult for
him to concentrate and engage in a sufficient pace throughout the course of a work day.”
Id. at 335.
The documentary medical opinion evidence also included the records of Dr.
Michael Grier, an M.D. and pain management specialist who had first examined Brown
in October 2006. By the second ALJ hearing, Brown had made more than forty office
visits to Dr. Grier. Over the course of those visits, Dr. Grier repeatedly noted Brown’s
pain-inducing physical impairments, adjusted his pain medications, and recognized his
pain-related limitations. In May 2013, Dr. Grier completed a form entitled “Clinical
Assessment of Pain” opining that Brown’s pain was “present to such an extent as to be
distracting to adequate performance of daily activities or work.” See A.R. 621. Dr. Grier
also stated that, with increased physical activity, “[g]reatly increased pain is likely to
occur, and to such a degree as to cause distraction from the task or even total
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abandonment of the task.” Id. According to Dr. Grier, Brown’s pain would cause
moderate to moderately severe interference with his ability to concentrate during an
eight-hour work day; would interfere with his ability to stay on task for two consecutive
hours without taking an unscheduled break; would cause him to exceed the number of
daily breaks normally allowed; and could possibly cause him to have more than three
pain-related absences from work each month.
Dr. Stephen Worsham, another M.D. and a primary care physician, had seen
Brown on nearly twenty occasions from 2007 to 2012. In February 2011, Dr. Worsham
completed a form reflecting his view that Brown suffered “from a medical condition or
combination thereof that would, most probably, cause him to experience chronic pain”;
that the pain was so severe that it would distract Brown in the workplace and impair his
ability to work; and that the pain was likely to increase with physical activity. See A.R.
240. Shortly thereafter, in April 2011, pain management specialist Dr. Carol Burnette,
M.D., examined Brown to assess his eligibility for workers’ compensation benefits and
concluded that Brown’s “ongoing pain and requirements for narcotic pain medications”
left him unable “to maintain gainful employment in any capacity.” Id. at 613. 3
Karl Weldon, the vocational expert who testified at the second ALJ hearing,
confirmed that there would be no work available to Brown if he had to lie down for
twenty minutes every hour of an eight-hour work day, if he exceeded the number of
allotted breaks per day, or if he missed two or more days of work a month.
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Brown’s treating and examining sources were contradicted by the Commissioner’s
medical expert, Dr. Alfred Jonas, M.D., a Florida psychiatrist who testified at the second
ALJ hearing by telephone. Dr. Jonas had not treated, or even examined, Brown. Rather,
Dr. Jonas simply reviewed the administrative record, not including Brown’s testimony at
the first ALJ hearing. Addressing Brown’s physical impairments, Dr. Jonas specifically
— and just briefly — discussed only a few of Brown’s medical records. One of those
was a record of Dr. Marion McMillan, an M.D. and pain management specialist who had
examined Brown in July 2007 and recommended surgery. Therein, Dr. McMillan stated
that “MRI examination documents far right lateral disc herniation and foraminal
compression of nerve root at L4-5, anatomically appropriate to explain symptoms.” Id. at
244. Dr. Jonas did not name Dr. McMillan but acknowledged his opinion that “there was
an MRI that was consistent with the symptoms.” Id. at 467. Dr. Jonas also noted a report
in the record of an August 2006 MRI of Brown’s lumbar spine. Without elaboration, Dr.
Jonas testified that it was “not clear to me from the MRI report that the findings would
have been consistent with the symptoms.” Id. Otherwise, Dr. Jonas mentioned an
October 2008 record of Dr. Burnette, which reflected that an “EMG of selected muscles
of the right lower extremity and lumbar paraspinal muscles . . . show normal findings.”
See id. at 260. Dr. Jonas also cited records of Dr. Grier of February, April, May, and
September 2008 documenting physical examinations, which Dr. Jonas characterized as
reporting nothing more than “a little bit of a limp.” Id. at 468.
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From there, Dr. Jonas testified that “[t]he record doesn’t really seem to provide the
kinds of objection [sic] indicators that we would expect so that we can assume that the
pain is as severe as the complaint is.” See A.R. 469. Dr. Jonas concluded:
So what I’m going to tell you about this is that there was an injury. I’m not
sure that it was very serious, and it looks to me as if the complaint of pain
has been amplified, and I cannot tell you with any confidence that there are
meaningful restrictions or limitations that would apply.
Id. That was the full extent of Dr. Jonas’s testimony concerning Brown’s physical
impairments and the veracity of his complaint of pain.
With respect to Brown’s mental impairments, Dr. Jonas testified that there was no
“firm diagnosis” in the record, in that Brown’s “amplified” complaint of pain meant that
his psychiatric diagnoses were “amplified, as well.”
See A.R. 469-70.
explained that, because there was no “firm psychiatric diagnosis that I could confirm for
you, . . . I didn’t make a careful attempt to analyze” whether Brown had any “meaningful
functional impairments” resulting from his mental condition. Id. at 470. Nevertheless,
pointing to snippets from Dr. Tollison’s and Dr. Keith’s evaluations, Dr. Jonas went on to
opine that “the indicators are suggestive of not a substantial concentration, persistence
and pace impairment, but there could be a slight [or mild] impairment.” Id. at 471
(observing that Brown could only “repeat five numbers forward” and “remember one of
three test words” with Dr. Keith, but that Dr. Keith stated Brown’s “cognitive functioning
was average” and Dr. Tollison noted Brown’s “[c]ognitive functioning [was] intact”).
When then asked by Brown’s lawyer about somatoform disorders, Dr. Jonas testified that
there could be no such disorder in Brown. See id. at 472 (“So we would not really think
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in terms of a somatoform disorder in somebody that we already thought might have a
cause of pain just because the person seems to be amplifying the complaint. . . . I think
that would be a misunderstanding of what somatoform is about.”).
After Dr. Jonas hung up, Brown’s lawyer objected that — although Dr. Jonas
could testify as an expert in psychiatry — there was nothing in the record reflecting that
he had “any medical expertise in the pain response to physical impairments.” See A.R.
473. The ALJ overruled the objection, explaining that Dr. Jonas was “a physician” and
“did go to medical school,” and that he had “the capability of giving information,
opinions, with respect to diagnostic tests and physical examinations from his medical
training and from his practice.” Id. The ALJ also faulted the lawyer for failing to object
when “we could have asked [Dr. Jonas] what his capabilities are.” Id.
As previously noted, the ALJ found that Brown suffered from an array of severe
physical and mental impairments, i.e., degenerative joint disease of the hips and right
shoulder, degenerative disc disease of the lumbar and cervical spine, depression, anxiety,
dysthymic disorder, and a somatoform disorder. In assessing Brown’s physical pain as
part of the RFC determination, the ALJ found in Brown’s favor that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms.”
See Second ALJ Decision 9. Against Brown, however, the ALJ further found that
Brown’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.” Id. The ALJ’s reasons for that adverse credibility
finding can be summarized as follows: (1) that Brown’s statements about the limiting
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effects of his pain were inconsistent with his testimony about his activities of daily living;
(2) that Brown’s statements were also in conflict with other evidence; and (3) that the
objective medical evidence did not reasonably support the claimed intensity and
frequency of Brown’s pain.
With respect to the first reason for the adverse credibility finding, the ALJ noted
that Brown testified to daily activities of living that included “cooking, driving, doing
laundry, collecting coins, attending church and shopping.” See Second ALJ Decision 11.
The ALJ did not acknowledge the extent of those activities as described by Brown, e.g.,
that he simply prepared meals in his microwave, could drive only short distances without
significant discomfort, only occasionally did laundry and looked at coins, and, by the
time of the second ALJ hearing, had discontinued regular attendance at church and
limited his shopping to just thirty minutes once a week. Moreover, the ALJ provided no
explanation as to how those particular activities — or any of the activities depicted by
Brown — showed that he could persist through an eight-hour workday.
Turning to his second reason for the adverse credibility finding, the ALJ pointed to
various pieces of evidence that he deemed to be in conflict with Brown’s claim of
disabling pain. For example, the ALJ invoked medical records establishing — in the
ALJ’s words — that Brown “has been exercising” and “doing a lot of physical activity
associated with work around his house and some malfunction of his vehicle.”
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Second ALJ Decision 10-11. The medical records cited (but not quoted) by the ALJ
included the following:
An August 2007 record of primary care physician Dr. Worsham:
“[Brown] states that he had crawled up under a truck to work on a
starter and has strained his shoulder, hip, and back in doing so,” see
A September 2009 record of pain management specialist Dr. Grier:
“[Brown] has been walking more, but sometimes that exacerbates
his pain,” id. at 369;
A December 2009 record of Dr. Grier: “[Brown] has had a bad
week this week. He has had a lot of physical activity associated with
work around the house and some malfunction of his vehicle. He is
here for follow-up and treatment options,” id. at 368;
A May 2010 record of Dr. Grier: “[Brown] is having some
increasing pain because he decided to start a walking regimen, which
he has done for the past 7 days. He has some increasing pain in his
left knee and hip because of known degenerative disease there,” id.
An April 2012 record of Dr. Grier: “Stable on meds for back pain
with a recent exacerbation three weeks ago due to some work at
home,” id. at 604; and
An October 2012 record of Dr. Grier: “[Brown] has been exercising,
trying to deal with the carrier’s request to decrease his medications
and he has flared up some musculoskeletal pain in the supraspinatus
muscle,” id. at 597; see also id. at 592, 594 (records of December
2012 and February 2013 containing same notation).
According to the ALJ, those medical records somehow reflected that Brown’s pain was
not as limiting as he claimed and contradicted his answers to the ALJ’s questions about
exercise and home repairs during the second ALJ hearing.
The ALJ further reasoned that, at the second ALJ hearing, Brown rated his lower
back pain a six to eight out of ten on the pain scale, which was “not consistent with
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reports of marked improvement in his back pain ever since receiving facet joint
injections.” See Second ALJ Decision 10. Medical records cited by the ALJ indeed
reported “marked improvement” in Brown’s back pain following injections. See, e.g.,
A.R. 600 (August 2012 record of Dr. Grier noting “marked improvement in [Brown’s]
back pain since the injections [in July 2012]. He decided to stop all his narcotics and has
had none for 10-14 days”).
The ALJ failed to acknowledge, however, that
contemporaneous records also indicated that the injections provided only temporary
relief. See id. at 599 (September 2012 record of Dr. Grier’s associate, Dr. Burnette,
reporting that, “[u]nfortunately, [Brown’s] back pain has worsened since his last visit and
he does not feel able to continue going without the pain medication”). Additionally, the
ALJ did not explain how a rating of six to eight on the pain scale — a scale going up to
ten — was incompatible with “marked improvement” in Brown’s back pain.
As another example of the ALJ’s justification for the adverse credibility finding,
the ALJ faulted Brown for complaining of left shoulder pain during the first ALJ hearing,
without “mak[ing] any allegations with respect to his left shoulder at the second hearing”
or “consistent complaints of left shoulder pain in the record.” See Second ALJ Decision
10. The ALJ thereby ignored Brown’s second ALJ hearing testimony about ongoing left
shoulder pain and records documenting that complaint. See, e.g., A.R. 474 (Brown’s
second ALJ hearing testimony that he continued to suffer from pain in his “left shoulder,”
and that the pain occurred “[d]uring the night, five days out of the week”); id. at 611-12
(notations in Dr. Burnette’s April 2011 workers’ compensation evaluation that, “[o]ver
time, [Brown] has noticed increased pain in the . . . left shoulder,” and that his “problems
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with the left shoulder and hand” have caused “difficulty trying to play guitar or other
instruments”); id. at 185 (notation in August 2010 vocational evaluation that Brown
“suffers from left shoulder pain,” i.e., “a sharp ache that increases with activities”).
The ALJ’s adverse credibility finding also relied on an exchange during the
second ALJ hearing between Brown and the Commissioner’s medical expert, Dr. Jonas.
The exchange began with Dr. Jonas’s testimony that, “back in July of 2007, . . .
somebody recommended surgery for [Brown], and I don’t know if he ever had the
surgery.” See A.R. 467. Having been authorized by the ALJ to question Brown, Dr.
Jonas then asked him, “[D]id you have surgery?” Id. Brown responded simply, “No,
sir.” Id. Thereafter, Dr. Jonas did not opine on the import of Brown’s response, but the
ALJ viewed it as proof that Brown’s “alleged disabling pain is not as severe as he
alleges.” See Second ALJ Decision 11. In so concluding, the ALJ failed to acknowledge
or address Brown’s first ALJ hearing testimony that he opted not to have the surgery —
which had been recommended by Dr. McMillan — on the advice of Dr. Grier.
Specifically, Brown explained during the first ALJ hearing that Dr. Grier advised him the
“laser type surgery . . . would burn the disc and bone, and it would make me worser than
better, so . . . he suggested that I shouldn’t have that done.” See A.R. 44.
At times, the ALJ relied on his own observations and medical judgments in
finding that Brown’s pain was not as limiting as he claimed. For example, the ALJ
concluded that, “[i]nconsistent with the claimant’s testimony regarding sitting tolerance
of 20 minutes[,] Mr. Brown sat in the [second ALJ] hearing from 9:48 until 10:59[,]
standing on one occasion for less than a minute. In addition, the hearing continued from
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11:58 until 12:02 with the claimant sitting.” See Second ALJ Decision 13. From his
observations of Brown, the ALJ reckoned that Brown sat through “both [the seventy-oneand four-minute] sessions without discomfort.”
Additionally, the ALJ
determined that Brown’s ability to complete one of the psychological tests administered
by Dr. Tollison, the MMPI-II, established that Brown had no more than mild difficulties
in maintaining concentration, persistence, and pace. That is, the ALJ relied on his own
judgment that, “[c]ertainly, taking the MMPI-II at one sitting requires a fair amount of
concentration and persistence especially when obtaining a valid score when one has to
distinguish questions that are similar and ability to discern the subtle distinctions in the
questions asked.” See id. at 20. The ALJ emphasized that “Dr. Tollison reported the
claimant’s test results were valid,” see id., but disregarded Dr. Tollison’s complete
statement that the results were “valid with no suggestion of symptom embellishment,” see
A.R. 377 (emphasis added). The ALJ also criticized Dr. Tollison for concluding both
“that Mr. Brown had marked limitations in concentration[,] persistence or pace,” and that
he “was capable of managing his funds” — a criticism that apparently was premised on
the ALJ’s view that Brown’s ability to manage his money equated with the ability to
sustain a full-time job. See Second ALJ Decision 18.
For the third reason for the adverse credibility finding — that the objective
medical evidence did not reasonably support the claimed intensity and frequency of
Brown’s pain — the ALJ credited the opinion of the Commissioner’s nontreating and
nonexamining expert Dr. Jonas over the opinions of Brown’s treating and examining
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sources. In so doing, the ALJ acknowledged that Dr. Jonas was a specialist in psychiatry,
and was “not a specialist in orthopedics.” See Second ALJ Decision 19. The ALJ
nonetheless credited Dr. Jonas’s opinion because “Dr. Jonas reviewed all of the evidence
of record” and thereby “had the big picture of the longitudinal medical and mental
evidence.” See id. at 17.
With respect to Brown’s physical impairments, the ALJ invoked Dr. Jonas’s
conclusion that the August 2006 MRI of Brown’s lumbar spine “was not consistent with
the claim[ed] symptomology” — without mentioning pain management specialist Dr.
McMillan and his contrary MRI assessment. See Second ALJ Decision 19. The ALJ
also pointed to Dr. Jonas’s observations that the October 2008 EMG of selected muscles
in Brown’s right lower extremity “was normal” and that between February and
September 2008 Brown had just a “modest” limp.
Although Dr. Jonas’s
testimony was limited to those few medical records, the ALJ explained that he was
persuaded by Dr. Jonas’s opinion because Dr. Jonas “articulated specific evidence,
diagnostic test[s] and physical examinations to support his conclusions.” See id.
The ALJ again relied on Dr. Jonas in finding that Brown’s mental impairments did
not leave him unable to persist through an eight-hour workday. According to the ALJ, he
accepted Dr. Jonas’s opinion that Brown had only “mild restrictions” in concentration,
persistence, and pace as a result of his mental impairments, because “Dr. Jonas
articulated a rationale and specific evidence over the longitudinal history including the
[August 2010] testing by Dr. Tollison in support of his conclusions.” See Second ALJ
Decision 17. Of course, in rendering his opinion, Dr. Jonas simply noted that Brown
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could only “repeat five numbers forward” and “remember one of three test words” during
his September 2009 evaluation by Dr. Keith, but that Brown’s cognitive functioning was
deemed “average” by Dr. Keith and “intact” by Dr. Tollison. See A.R. 471.
Remarkably, the ALJ did not address the incongruity between his finding that
Brown suffered from a severe somatoform disorder and Dr. Jonas’s rejection of that
diagnosis. Indeed, the ALJ did not even mention the somatoform disorder in connection
with his assessment of Brown’s claim of disabling pain.
Meanwhile, the ALJ rejected the consistent opinions of Brown’s treating and
examining sources — Dr. Tollison, Dr. Keith, Dr. Grier, Dr. Worsham, and Dr. Burnette
— that Brown lacked the concentration, persistence, and pace for full-time work and
would need more than a permissible number of rest breaks and sick days. The ALJ
specified that the opinions of Drs. Tollison, Grier, and Worsham were contrary and
inferior to the opinion of Dr. Jonas. See, e.g., Second ALJ Decision 17 (“Dr. Jonas
reviewed all of the evidence of record which Dr. Tollison did not.”); id. at 20 (“[B]ased
on the testimony of Dr. Jonas, . . . I find that substantial evidence is inconsistent with Dr.
Grier’s opinion.”). Furthermore, the ALJ faulted the opinions of Drs. Tollison, Grier,
Worsham, and Burnette for being at odds with the ALJ’s view of the record, including
medical records and Brown’s activities of daily living. See, e.g., id. at 19 (“I find [Dr.
Worsham’s] opinion unsupported by [his] physical examinations and inconsistent with
[Brown’s report to Dr. Worsham of] working on a car . . . .”); id. at 20 (“Dr. Grier’s
opinions concerning the ability to attend and concentrate on task is not consistent with
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Mr. Brown’s . . . ability to handle the rigors of answering 567 or 338 questions on the
short version of the MMPI-II.”).
The ALJ also found fault with the forms used to convey the opinions of Drs. Grier
and Worsham, and refused to accord controlling weight to those physicians as treating
sources. See Second ALJ Decision 18-20. The ALJ accorded “limited weight” to Dr.
Tollison, “less than significant weight” to Dr. Grier, and “little weight” to Drs. Worsham
and Burnette. Id. at 17, 19-21. Despite the credit he accorded Dr. Jonas, the ALJ
devalued Dr. Worsham, a primary care physician, for not being “a specialist,” and Dr.
Keith, a psychologist, because he merely “evaluated [Brown] on one occasion and his
evaluation [was] only a snapshot in time.” Id. at 18, 22. The ALJ ultimately gave
“limited weight” to Dr. Keith’s opinion to the extent it was “inconsistent with Dr. Jonas,”
but identified Dr. Keith’s opinion as “the initial predicate in limiting [Brown] to simple
[1-2] step tasks because of pain.” Id. at 22.
In November 2014, following the denial of Brown’s claim for disability insurance
benefits, Brown sought review of the Second ALJ Decision in the district court. Brown
contended, inter alia, that the ALJ improperly evaluated the medical opinion evidence
and failed to heed the treating physician rule in rejecting the proposition that Brown’s
pain- and depression-related limitations in maintaining concentration, persistence, and
pace and his need for more than a permissible number of rest breaks and sick days left
him unable to sustain full-time employment. More specifically, Brown asserted that the
ALJ erred in his RFC determination by crediting the opinion of nontreating and
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nonexamining source Dr. Jonas over the opinions of Brown’s treating and examining
sources — including not only Drs. Tollison, Keith, Grier, Worsham, and Burnette, but
also Dr. McMillan, who went unmentioned in the Second ALJ Decision. As Brown
argued in his objections to the January 2016 Report of the magistrate judge
recommending affirmance of the Second ALJ Decision, a significant part of the ALJ’s
misapplication of the treating physician rule was his reliance on cherry-picked evidence
skewed to contradict Brown’s doctors. Brown explained:
While the ALJ may discount a treating physician’s opinion if it is
unsupported or inconsistent with other evidence, the ALJ must consider all
the record evidence and cannot pick and choose only the evidence that
supports his position. Nonetheless, that is exactly what the ALJ has done in
[the Second ALJ Decision]. The ALJ has disregarded ALL the medical
evidence — evidence which remains consistent across all physicians who
have ever examined [Brown] — in exchange for selected evidence which
supports [the ALJ’s] position.
See Brown v. Colvin, No. 6:14-cv-04486, at 9 (D.S.C. Feb. 17, 2016), ECF No. 23
(internal quotation marks omitted). Nevertheless, by its Order of March 2016, the district
court adopted the Report and affirmed the Second ALJ Decision, thereby prompting this
The Commissioner contends on appeal that Brown failed to preserve certain
arguments by raising them in the district court, including in his objections to the
magistrate judge’s Report. See United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir.
2007) (citing 28 U.S.C. § 636(b)(1)). To the extent that the Commissioner targets any of
the issues on which we premise our vacatur and remand, we disagree that those issues
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We are called upon today to review the district court’s affirmance of the Second
In social security proceedings, a court of appeals applies the same
standard of review as does the district court. See Preston v. Heckler, 769 F.2d 988, 990
(4th Cir. 1985). That is, a reviewing court must “uphold the determination when an ALJ
has applied correct legal standards and the ALJ’s factual findings are supported by
substantial evidence.” See Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th
Cir. 2012) (citing 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” See Mastro v.
Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal quotation marks omitted).
On appeal, Brown reiterates the contentions that he made in the district court,
including that the ALJ improperly assessed the medical opinion evidence and disregarded
the treating physician rule in rendering his RFC determination and finding that Brown
could persist through an eight-hour workday. In the words of Brown, the ALJ’s analysis
“effectively turned the [treating physician rule] on its head, deferring to [a physician]
who had never laid eyes on Brown while dismissing the opinions of those who had
examined and treated him dozens of times over many years.” See Br. of Appellant 27.
As heretofore announced, we agree and therefore vacate and remand for further
Under the regulation spelling out the standards for evaluating medical opinion
evidence, more weight is generally given “to the medical opinion of a source who has
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examined you than to the medical opinion of a medical source who has not examined
you.” 20 C.F.R. § 404.1527(c)(1). The regulation’s treating physician rule accords the
greatest weight — controlling weight — to the opinions of treating sources, because
those “sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations.” Id. § 404.1527(c)(2). Nevertheless, the ALJ
credited the opinion of nonexamining and nontreating source Dr. Jonas that the objective
medical evidence did not reasonably support the intensity and frequency of physical pain
claimed by Brown. The ALJ also credited Dr. Jonas’s opinion that Brown had only mild
restrictions in concentration, persistence, and pace as a result of any mental impairments.
Faithless to the regulation and its treating physician rule, the ALJ relied on a theory that
— because Dr. Jonas had simply reviewed the administrative record — he had greater
knowledge of “the longitudinal medical and mental evidence” than all of Brown’s
treating and examining sources. See Second ALJ Decision 17.
In addition to flouting the treating physician rule, the ALJ’s reliance on Dr. Jonas
was not justified by the three factors that might actually warrant crediting the opinion of a
nontreating source: supportability in the form of a high-quality explanation for the
opinion and a significant amount of substantiating evidence, particularly medical signs
and laboratory findings; consistency between the opinion and the record as a whole; and
specialization in the subject matter of the opinion. See 20 C.F.R. § 404.1527(c)(3)-(5).
With respect to the supportability of Dr. Jonas’s opinion, he cited just a few medical
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records and two diagnostic tests — dating from 2006 to 2008 and largely focused on
Brown’s lower back — before summarily opining that there were no objective physical
indicators for the ongoing and worsening pain that Brown claimed as late as 2013 in his
shoulders, lower back, and right hip, leg, and foot. Dr. Jonas also opined that Brown’s
physical impairments resulted in no meaningful restrictions or limitations. After then
acknowledging that he had not carefully analyzed whether there were any limitations
arising from Brown’s mental impairments, Dr. Jonas made the off-the-cuff
pronouncement that Brown had, at most, a mild impairment in concentration, persistence,
and pace. Dr. Jonas based that judgment on selected nuggets from the 2009 and 2010
evaluations of Brown by Drs. Keith and Tollison, each of whom had ultimately
concluded — premised on far more evidence than that discussed by Dr. Jonas — that
Brown could not persist through an eight-hour workday because of his chronic pain and
As for the consistency between Dr. Jonas’s opinion and the record as a whole, his
opinion was not even consistent with the ALJ’s findings that Brown suffered from severe
physical impairments in his right shoulder, lower back, and hips that limited him to
sedentary work, as well as severe mental impairments that included depression, anxiety,
dysthymic disorder, and a somatoform disorder. Indeed, not only was Dr. Jonas unable to
make a firm diagnosis of Brown’s mental impairments, but Dr. Jonas rejected the
diagnosis of a somatoform disorder that the ALJ accepted. Thus, where Dr. Jonas’s
specialization — psychiatry — might have justified the elevation of his opinion, the ALJ
had a significant disagreement with Dr. Jonas. Meanwhile, despite Dr. Jonas’s lack of
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specialization in orthopedics — and despite devaluing the opinion of primary care
physician Dr. Worsham for his similar lack of specialization — the ALJ credited Dr.
Jonas’s conclusion that there were no objective physical indicators for the claimed
intensity and frequency of Brown’s pain.
The only possible justification left for the ALJ’s crediting of Dr. Jonas over
Brown’s treating and examining sources is that Dr. Jonas’s opinion lined up most closely
with the view of the record espoused by the ALJ in rendering his adverse credibility
finding against Brown. 5 Of course, the ALJ is supposed to consider whether a medical
opinion is consistent, or inconsistent, with other evidence in the record in deciding what
weight to accord the opinion. See 20 C.F.R. § 404.1527(c)(2) (requiring controlling
weight to be accorded to a treating source’s opinion if, inter alia, it “is not inconsistent
with the other substantial evidence in your case record”); id. § 404.1527(c)(4) (specifying
“[c]onsistency . . . with the record as a whole” as a factor to be used to determine the
weight to be given any other medical opinion, whether from a treating source not
accorded controlling weight or from a nontreating source). Similarly, in assessing the
credibility of a claimant’s statements about pain and its functional effects, the ALJ is
supposed to consider whether there are “any conflicts between your statements and the
To the extent that the ALJ found fault with the forms reflecting the opinions of
Drs. Grier and Worsham, that was not a sufficient reason to favor the contrary opinion of
Dr. Jonas. See, e.g., Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (rejecting
Commissioner’s challenge to a physician’s use of a form, where there was “a long record
of treatment by [the doctor] that support[ed] his notations on the form”).
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rest of the evidence, including your history, the signs and laboratory findings, and
statements by your medical sources or other persons about how your symptoms affect
you.” Id. § 404.1529(c)(4).
Significantly, however, the ALJ must “‘build an accurate and logical bridge from
the evidence to his conclusion’ that [the claimant’s] testimony was not credible” —
which the ALJ wholly failed to do here. See Monroe v. Colvin, 826 F.3d 176, 189 (4th
Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). For example, in
support of the adverse credibility finding, the ALJ declared that Brown’s statements
about the limiting effects of his pain were inconsistent with his testimony about his
activities of daily living. The ALJ noted various of Brown’s activities — such as
“cooking, driving, doing laundry, collecting coins, attending church and shopping” — but
did not acknowledge the limited extent of those activities as described by Brown or
explain how those activities showed that he could sustain a full-time job. See Second
ALJ Decision 11. Similarly, in Clifford, “the ALJ merely list[ed] [the claimant’s] daily
activities as substantial evidence that she does not suffer disabling pain.” See 227 F.3d at
872. As explained by the Clifford court, the ALJ’s effort was “insufficient,” because the
claimant testified to only “minimal daily activities” that neither established that she was
“capable of engaging in substantial physical activity” nor “contradict[ed] her claim of
disabling pain.” Id. (recounting claimant’s testimony that, e.g., “her typical household
chores took her only about two hours to complete”; “she cooks, but only simple meals”;
“she could vacuum, but it hurts her back”; “she goes grocery shopping about three times
a month and ‘sometimes’ carries groceries from the car to the apartment”; and “she
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walked to get exercise at her doctor’s suggestion,” but “must rest after walking anywhere
between three and five blocks”).
There is also no “accurate and logical bridge” from the evidence to the ALJ’s
conclusion that Brown’s statements about his pain were in conflict with other evidence,
including medical records that the ALJ characterized as showing that Brown had “been
exercising” and “doing a lot of physical activity associated with work around his house
and some malfunction of his vehicle.” See Second ALJ Decision 10-11. The medical
records cited (but not quoted) by the ALJ actually reflected that, since August 2007,
Brown had made a couple of attempts at walking more and some effort at exercising,
engaged in housework on two occasions, and worked on his vehicle twice — thereby
aggravating his physical impairments and pain each and every time. The records do not
support the ALJ’s suggestion that Brown was regularly exercising and doing housework
and car repairs, in contradiction to his claim of disabling pain. See, e.g., Carradine v.
Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (concluding that an ALJ improperly “failed
to consider the difference between a person’s being able to engage in sporadic physical
activities and her being able to work eight hours a day five consecutive days of the
week”). Moreover, other than the isolated incidents of car repairs, the records very well
may refer only to activities that Brown himself testified to, including walking and
housework such as doing laundry.
Contrary to the ALJ, the records also do not contradict Brown’s second ALJ
hearing testimony. After Brown generally denied that he had “exercised” or engaged in
“home repairs or maintenance” since his workplace accident, the ALJ asked “why your
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doctors report that you have been exercising.” See A.R. 485. Brown responded that the
doctors might be referring to his regular walks “to the mailbox and back,” or perhaps to
an unsuccessful endeavor “to walk on a treadmill.”
Id. (surmising that walking is
“exercise, I guess”). When then asked by the ALJ “why your doctors report that you
were doing work on your home, doing repairs,” Brown pleaded ignorance as to “what
type of repairs you’re referring to,” and the ALJ provided no clarification. Id. Although
the relevant medical records did not, in fact, discuss “home repairs” or define “exercise”
as anything other than walking, the Second ALJ Decision penalized Brown for being
dishonest at the hearing.
Other instances of inaccuracy and unreasonableness in the ALJ’s adverse
credibility finding include the following, as detailed above: summarily concluding that
Brown’s second ALJ hearing rating of his lower back pain, as a six to eight out of ten on
the pain scale, was incompatible with medical records reflecting that injections had
afforded him some temporary relief; falsely accusing Brown of abandoning his claim of
left shoulder pain after the first ALJ hearing; and using Brown’s decision not to have the
surgery recommended by Dr. McMillan as proof of the nonseverity of Brown’s pain, in
flagrant disregard of Brown’s first ALJ hearing testimony that he declined the surgery on
the advice of Dr. Grier. See Second ALJ Decision 10-11. The ALJ also improperly
relied on his own observations and medical judgments in finding that — because Brown
was able to sit through the second ALJ hearing, take a certain psychological test (the
MMPI-II), and manage his own money — his pain was not as limiting as he claimed. Id.
at 13, 18, 20. In so doing, the ALJ impermissibly substituted his lay opinions for the
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judgments of medical professionals who had treated and examined Brown over many
years. See, e.g., Wilson v. Heckler, 743 F.2d 218, 221 (4th Cir. 1984) (recognizing that
an “ALJ erroneously exercised an expertise he did not possess” — there, “in the field of
In these circumstances, the ALJ erred by crediting Dr. Jonas and rejecting the
opinions of Brown’s treating and examining sources that, because of his chronic pain and
mental impairments, Brown could not persist through an eight-hour workday. For that
reason alone, we are obliged to vacate and remand for further proceedings. 6
Although our decision does not rely on it, we note the discussion in Brown’s
opening appellate brief of district court decisions looking unfavorably upon opinions
offered by Dr. Jonas in social security cases. See Br. of Appellant 39-41. Brown focuses
on the decision in Creekmore v. Colvin, which, like this matter, was adjudicated in the
District of South Carolina, albeit by a different district judge. See No. 5:14-cv-03019
(D.S.C. Aug. 12, 2015), ECF No. 27 (Gergel, J.). The Creekmore decision observed:
In the course of reviewing the case law regarding Dr. Jonas’ testimony, the
Court came across what appeared to be a troubling pattern of the Social
Security Administration repeatedly utilizing Dr. Jonas to attack the
opinions and treatment of claimants’ treating physicians. Many of these
cases where Dr. Jonas testified against the claimant involved, like this
matter, a reversal of an earlier denial of Social Security disability by a
district court and remand to the agency for a new administrative hearing.
The frequency of Dr. Jonas’ testimony on behalf of the Social Security
Administration and against the claimant and his likely significant
compensation for these services should be fully disclosed because they may
be highly relevant to the weight and credibility given to Dr. Jonas’
opinions. The Court would look with grave concern on the use by the
Social Security Administration of a “hired gun” expert to defeat the claims
of potentially deserving claimants by systematically attacking the opinions
and treatment of their treating physicians.
Id. at 13-14 (footnote omitted).
Pg: 39 of 41
Finally, we identify other errors committed by the ALJ in assessing the medical
opinion evidence as part of his RFC determination, so that those errors are not repeated
on remand. See Bird v. Commissioner, 699 F.3d 337, 342-43 (4th Cir. 2012) (considering
nondispositive issues because they would “arise again on remand before the ALJ”). First
of all, the ALJ erred in failing to acknowledge and assess the opinion of pain
management specialist Dr. McMillan, upon his examination of Brown in July 2007, that
“MRI examination documents far right lateral disc herniation and foraminal compression
of nerve root at L4-5, anatomically appropriate to explain symptoms.” See A.R. 244
(emphasis added). Pursuant to the relevant regulation, the ALJ was required to “evaluate
every medical opinion” presented to him, “[r]egardless of its source.” See 20 C.F.R.
§ 404.1527(c). What Dr. McMillan provided — including his interpretation of the MRI
and conclusion that it showed an impairment consistent with Brown’s complaint of pain
— was certainly a “medical opinion” that the ALJ was obliged to consider. See id.
§ 404.1527(a)(1) (defining “medical opinions” to include “statements from [licensed
physicians] that reflect judgments about the nature and severity of your impairment(s),
including your symptoms”). The ALJ’s error is particularly noteworthy in light of his
conclusion that the objective medical evidence did not reasonably support the claimed
intensity and frequency of Brown’s pain.
Additionally, the ALJ’s conclusion that there was insufficient medical evidence to
corroborate Brown’s claim of pain is incongruous with the ALJ’s finding that Brown
suffered from a severe somatoform disorder. As previously explained, a somatoform
Pg: 40 of 41
disorder is a psychiatric disorder that causes unexplained physical symptoms, including
pain. That is, there are no objective physical indicators of pain caused by a somatoform
disorder, and yet that pain is genuine and may be disabling. See Carradine, 360 F.3d at
754 (explaining that a diagnosis such as somatoform disorder reflects “merely that the
source of [a social security applicant’s] pain is psychological rather than physical,” and
does not thereby “disentitle the applicant to benefits”). Accordingly, the ALJ erred by
ignoring Brown’s somatoform disorder — that the ALJ had theretofore found to exist —
in making the RFC determination. That error, like the error in failing to assess Dr.
McMillan’s opinion, must not be repeated on remand. 7
Pursuant to the foregoing, we vacate the judgment of the district court and remand
with instructions for that court to remand for further proceedings.
VACATED AND REMANDED
Notably, Brown raised an additional ground for vacatur in both the district court
proceedings and this appeal: that the ALJ erred in his RFC determination by failing to
account for the limited dexterity in Brown’s hands and fingers. According to Brown, the
ALJ should have credited the evidence of vocational evaluator Randy Adams, who
administered a dexterity test in August 2010 and deemed Brown to be unsuitable for any
job “requir[ing] him to utilize his hands and fingers on a repetitive basis and [to]
manipulat[e] small parts.” See A.R. 191. The ALJ instead found that Brown could
frequently handle and finger based on evidence that he “collect[ed] coins,” “look[ed] at
the coins with a magnifying glass,” and “use[d] a computer.” See Second ALJ Decision
22. Considering that Brown testified to owning merely “a few coins,” to just
occasionally looking at “pocket change” with a magnifying glass, and to being able to use
a computer only “a little” and only without a “regular mouse,” see A.R. 58, 481, that
aspect of the ALJ’s RFC determination must be revisited.
Pg: 41 of 41
NIEMEYER, Circuit Judge, dissenting:
In denying Brown’s claim for disability benefits, the ALJ considered the medical
evidence and evaluated it together with Brown’s own extensive testimony. While the
ALJ concluded that Brown suffered from several impairments that could reasonably be
expected to cause his alleged symptoms, he also concluded that Brown’s testimony about
“the intensity, persistence and limiting effects” of those symptoms was exaggerated and
materially incredible. The ALJ went into substantial detail, pointing out discrepancies
between Brown’s statements and other evidence, including the objective medical
evidence. At bottom, because I conclude that the ALJ’s conclusions were supported by
substantial evidence, I would affirm.
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