Porter v. Colvin
MEMORANDUM OPINION granting Plaintiff's Alternative Motion for Remand. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/15/2016. (cc/m 9/16/2016 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARIE E. PORTER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil No. TMD 15-1210
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Maria E. Porter seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3)
of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”)
denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment and alternative
motion for remand (ECF No. 11) and Defendant’s Motion for Summary Judgment (ECF No.
12).1 Plaintiff contends that the administrative record does not contain substantial evidence to
support the Commissioner’s decision that she is not disabled. No hearing is necessary. L.R.
105.6. For the reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 11) is
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
Plaintiff was born in 1961, has a ninth-grade education, and previously worked as a
driver, housekeeper, and sewing-machine operator.
R. at 22, 32-33, 220-21.
protectively filed an application for SSI on December 9, 2011, alleging disability beginning on
November 14, 2010, due to anxiety and arthritis.
R. at 12, 196-201, 216, 220.
Commissioner denied Plaintiff’s application initially and again on reconsideration, so Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). R. at 54-87, 92-99. On
February 19, 2014, ALJ Brian P. Kilbane held a hearing at which Plaintiff and a vocational
expert (“VE”) testified. R. at 29-45. On February 28, 2014, the ALJ issued a decision finding
Plaintiff not disabled since the application date of “December 12, 2011 [sic].” R. at 9-28.
Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s request
for review on April 10, 2015. R. at 1-5, 8, 285-88. The ALJ’s decision thus became the final
decision of the Commissioner. See 20 C.F.R. § 416.1481; see also Sims v. Apfel, 530 U.S. 103,
106-07, 120 S. Ct. 2080, 2083 (2000).
On April 28, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
Summary of Evidence
The ALJ reviewed the opinion evidence in his decision:
[O]n February 24, 2012, [Plaintiff] saw consultative examiner Frank R.
Hershberger, Ph.D. for psychiatric assessment. She indicated on an activities-ofdaily-living report that she was independent in activities of daily living and could
sustain concentration to watch television, reading newspaper [sic], visit with
friends, and do some household chores. [R. at 384-86.] She was pleasant and
cooperative during the assessment. Her mood was anxious and her affect was
euthymic. Speech and thought processes were logical and coherent. She related
that she began experiencing panic attacks at age 14 and noted that they occurred
four to five times a week and could last up to an hour. She said that her mood
was always down or depressed, and she experienced fatigue. She stated that she
had agoraphobia and found it difficult to leave home. [R. at 387.] She stated that
she worked at a local hospital in the housekeeping department and [stopped]
working in November 2011 (one year after the alleged onset date) due to pain in
her knees and panic attacks while at work. She stated that she was involved in
mental health therapy for one month at the Hyndman Health Center about 20
years earlier and that . . . her primary care physician prescribed antidepressants
and a sedative. The consultative examiner assessed major depressive disorder
(recurrent) and panic disorder with agoraphobia. [R. at 390.]
R. at 18-19; see R. at 383-90.
On March 5, 2012, a state agency consultant, E. Edmunds, Ph.D., using the psychiatric
review technique (“PRT”) under 20 C.F.R. § 416.920a, evaluated Plaintiff’s mental impairments
under Listings 12.04 and 12.06 relating to affective disorders and anxiety-related disorders (R. at
59-60). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.06. Dr. Edmunds opined that, under
paragraph B of the applicable listings, Plaintiff’s mental impairments caused her to experience
(1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social
functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and
(4) one or two repeated episodes of decompensation of extended duration. R. at 59. Dr.
Edmunds did not find evidence to establish the presence of the criteria under paragraph C of the
applicable listings. R. at 60. Dr. Edmunds thus assessed Plaintiff’s mental residual functional
capacity (“RFC”) (R. at 62-65) and opined that she was moderately limited in her ability to
(1) understand, remember, and carry out detailed instructions; (2) maintain attention and
concentration for extended periods; (3) perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; (4) work in coordination with or
proximity to others without being distracted by them; (5) complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; (6) interact
appropriately with the general public; (7) get along with co-workers or peers without distracting
them or exhibiting behavioral extremes; (8) respond appropriately to changes in the work setting;
and to (9) travel in unfamiliar places or to use public transportation. Plaintiff otherwise was not
significantly limited. R. at 63-64.
The ALJ also noted in his decision:
[O]n March 12, 2012, [Plaintiff] presented for physical examination by
consultative examiner William Russell, M.D. She stated that she was applying
for disability, because she was in a local Social Security office with a friend and
was advised by Social Security staff to apply. She stated that she otherwise had
no intention of applying for disability. She stated that she last worked in
November 2011 doing housekeeping, but that she had to quit, because she could
not perform the essential functions of her job. The examiner reviewed x-rays of
the left elbow done in September 2011, which showed joint effusion and a
possible fracture of the radial neck. [Plaintiff] reported that she was being
followed at an urgent care center and was prescribed tramadol for pain, which she
said was ineffective. She reported having pain ranging from 3/10 to 10/10 in
severity. Her gait was normal on examination and she required no physical
assistance for transfers, or to get on or off the examination table. She had diffuse
weakness with manual testing of the upper and lower limbs and grip strength was
reduced. Seated in supine position, root tension signs were negative and range of
motion was mostly normal except for knee flexion, which was limited by obesity.
X-rays of the lumbar spine showed lower lumbar degenerative spondylosis. Xrays of the right knee showed moderate degenerative narrowing at the medial
tibiofemoral joint and imaging of the left knee showed mild to moderate
degenerative osteoarthritis. The examiner diagnosed obesity and polyarthralgias.
[R. at 391-401.]
R. at 19.
On March 22, 2012, another state agency consultant, S.K. Najar, M.D., assessed
Plaintiff’s physical RFC. R. at 61-62. Dr. Najar opined that Plaintiff could (1) lift and/or carry
twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about
six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and
(4) perform unlimited pushing and/or pulling. R. at 61. Plaintiff frequently could balance and
occasionally could stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders,
ropes, or scaffolds).
R. at 62.
Plaintiff had no manipulative, visual, communicative, or
environmental limitations. R. at 62.
On June 27, 2012, another state agency consultant, G. Dale, Jr., Ed.D., again used the
PRT to evaluate Plaintiff’s mental impairments under Listings 12.04 and 12.06. R. at 75-76. Dr.
Dale opined that, under paragraph B of the applicable listings, Plaintiff’s mental impairments
caused her to experience (1) mild restriction in activities of daily living; (2) moderate difficulties
in maintaining social functioning; (3) moderate difficulties in maintaining concentration,
persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at
76. Dr. Dale did not find evidence to establish the presence of the criteria under paragraph C of
the applicable listings. R. at 76. Dr. Dale thus assessed Plaintiff’s mental RFC (R. at 77-80) and
opined that she was moderately limited in her ability to (1) understand, remember, and carry out
detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances; (4) work in coordination with or proximity to others without being distracted by
them; (5) complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods; (6) interact appropriately with the general public; (7) get along with co-workers
or peers without distracting them or exhibiting behavioral extremes; (8) respond appropriately to
changes in the work setting; and to (9) travel in unfamiliar places or to use public transportation.
Plaintiff otherwise was not significantly limited. R. at 78-79. Both Drs. Edmunds and Dale
expressed the same opinions about Plaintiff’s sustained concentration and persistence limitations:
Anxiety and mood symptoms along with distractions from somatic issues will
intermittently disrupt sustained concentration and persistence. [Plaintiff] would
be able to complete a normal workday with reasonable breaks. Anxiety concerns
will make it difficult at times, but [Plaintiff] would be able to complete a normal
workweek without significant exacerbation of psych symptoms.
R. at 64, 78. They further opined that Plaintiff “will have intermittent difficulty with persistence
and [attention/concentration], but she would be able to perform simple tasks on a sustained basis,
from a mental standpoint.” R. at 65, 79.
On October 16, 2012, Allison Evans-Wood, D.O., who had seen Plaintiff since December
30, 2009, completed a Physical Residual Functional Capacity Questionnaire. R. at 444-47. Dr.
Evans-Wood’s diagnoses included degenerative joint disease, degenerative disc disease,
depression, anxiety, hyperlipidemia, bilateral knee pain, and elbow pain. R. at 444. Plaintiff’s
prognosis was good. R. at 444. According to Dr. Evans-Wood, Plaintiff’s pain and symptoms
were occasionally severe enough to interfere with her attention and concentration needed to
perform simple work tasks.
R. at 445.
Because of her anxiety, Plaintiff was capable of
performing only low-stress jobs. R. at 445. Dr. Evans-Wood estimated that Plaintiff could walk
one to two city blocks without rest or severe pain. R. at 445. Dr. Evans-Wood opined that
Plaintiff could sit for one hour at a time and stand for one hour at a time. R. at 445. Plaintiff
could sit and stand/walk for a total of about two hours in an eight-hour workday. R. at 446. She
needed to walk for two minutes every hour during an eight-hour workday, and she would require
a job permitting shifting at will from sitting, standing, or walking. R. at 446. Plaintiff would
need to take unscheduled, one- to two-minute breaks every two hours during an eight-hour
workday. R. at 446. She did not need to use a cane or other assistive device while occasionally
standing or walking. R. at 446. Plaintiff could lift rarely less than ten pounds and never twenty
pounds. R. at 446. Plaintiff could never twist, stoop, crouch, or climb ladders. R. at 447. She
could climb stairs rarely. R. at 447. Dr. Evans-Wood opined that Plaintiff likely would be
absent from work about three days per month as a result of her impairments. R. at 447.
According to Dr. Evans-Wood, Plaintiff had been suffering from her symptoms since December
30, 2009. R. at 447.
The ALJ summarized Plaintiff’s testimony in his decision:
[Plaintiff] has alleged (in testimony and documents submitted in
connection with this application and appeal) that she is disabled by arthritis in the
hands and knees, a back condition, obesity, anxiety, and depression. She stated
that she gained 50 pounds in a period of a year due to not being able to move
around. She stated that she has pain in her legs, knees, hands, and back for which
she takes tramadol. She stated that activities make her pain worse, as does sitting
for long periods. She testified that she can sit for about 15 minutes before
needing to get up, stand for about 15 to 20 minutes before having knee pain, and
walk for about 10 minutes for having pain in the knees and back. She said that
she does not use a cane due to difficulty holding one in her hands. She stated that
she could make simple meals, do some grocery shopping, and household chores.
However, she said she has swelling and pain in her hands that affects [sic] her
ability to do household chores such as washing dishes, preparing meals, and doing
hair. She stated that she lies back in a recliner to relieve pressure from her back
about 6 to 7 hours a day. She also endorsed symptoms from her mental
impairments that include panic attacks, rapid heartbeat, and feeling afraid. She
said that she has panic attacks when leaving the house and takes Ativan for her
conditions. She denied having side effects from medication and said that she has
difficulty with concentration, memory and focus, because she rarely gets adequate
sleep. [Plaintiff] stated in her Function Report that her impairments affect her
ability to lift, squat, bend, stand, reach, walk, sit, kneel, stair climb, remember,
complete tasks, concentrate, and use her hands. She said that she uses a cane, but
did not indicate that it was prescribed by [a] doctor [R. at 248, 263, 265].
R. at 17-18; see R. at 32-42.
The VE testified that a hypothetical individual with Plaintiff’s same age, education, work
experience, and the RFC outlined below in Part III could not perform Plaintiff’s past relevant
work but could perform the unskilled, light2 jobs of price marker, garment sorter, or cleaner. R.
at 43-44. The VE’s testimony was consistent with the Dictionary of Occupational Titles.3 R. at
44. According to the VE, unskilled jobs at the sedentary and light exertional levels require an
individual to remain on task 90% of the time. R. at 44-45. A person absent from work more
than one or two days per month would not be employable. R. at 44.
Summary of ALJ’s Decision
On February 28, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the application date of “December 12, 2011 [sic]”; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 416.968(a). “Light work involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds.” Id. § 416.967(b).
“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 416.966(d)(1). “Information contained in the
[Dictionary of Occupational Titles] is not conclusive evidence of the existence of jobs in the
national economy; however, it can be used to establish a rebuttable presumption.” English v.
Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform her past relevant work; but (5) could
perform other work in the national economy, such as a price marker, garment sorter, or cleaner.
R. at 14-23. The ALJ thus found that she was not disabled since the application date of
“December 12, 2011 [sic].” R. at 23.
In so finding, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 416.967(b) except that she can
occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. She can
frequently balance and should never climb ladders, ropes, and scaffolds. Despite
her mental limitations, she retains the ability to perform simple, unskilled work on
a sustained basis in a competitive work environment with no more than occasional
interaction with co-workers and the general public.
R. at 16-17 (footnote omitted).
The ALJ also considered Plaintiff’s credibility and found that her “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [her] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 20. The
ALJ found that Plaintiff’s physical and mental impairments were treated conservatively with
medication and that her daily activities were not limited to the extent expected in light of her
complaints of disabling symptoms and limitations. R. at 20.
The ALJ considered the opinion evidence and found:
As for the opinion evidence, the opinions of the experts who prepared the
state agency (DDS) reports are given the greatest weight, particularly the most
recent assessment found in the record at [R. at 54-67]. This assessment was
affirmed on reconsideration [R. at 69-82] and has been adopted by the
undersigned. The undersigned finds that these expert opinions are balanced,
objective, and consistent with the evidence of record as a whole. Although these
experts did not have an opportunity to examine or treat [Plaintiff], the reports
clearly reflect a thorough review of the record and are supportable. In short, these
experts’ familiarity with the SSA disability evaluation program and the evidence
of record warrants the greatest weight—the opinions given the greatest weight are
most consistent with the longitudinal review of the evidence of record.
Considerable weight is given to the assessment by consultative examiner
Dr. Russell who opined in March 2012 that from a musculoskeletal perspective,
[Plaintiff’s] physical abilities would likely improve with adequate pain relief and
that she could perform a range of light work [R. at 394]. This opinion is given
considerable weight, because it is balanced and supported by objective evidence
of record, particularly in view of evidence documenting limited abnormalities on
clinical examination and diagnostic studies and conservative treatment.
Less weight is given to the assessment by consultative examiner Dr.
Hershberger, who opined in February 2012 that [Plaintiff] would likely
experience difficulty with social interaction, loss of concentration, and ability to
maintain persistence with tasks. [R. at 390.] While the record appears to support
that [Plaintiff] might have some difficulty with social interaction as provided for
in the [RFC] herein, the remainder of Dr. Hershberger’s opinion lacks consistency
with the record as a whole. The assessment by Dr. Hershberger documents
activities that [show] an ability to maintain at least some concentration and task
persistence, such as the ability to do household chores, independence in activities
of daily living, and daily activities such as watching television and reading the
newspaper. [R. at 383-90.] Accordingly, the undersigned finds that [Plaintiff] is
capable of maintaining concentration and task persistence and occasional
interaction with coworkers and the general public in accordance with the [RFC]
provided herein, and this opinion is given little weight.
Little to no weight is given to the assessment by treating source Allison
Evans-Wood, D.O. who opined that [Plaintiff] is limited to performing less than a
full range of sedentary work and could be expected to be absent from work about
three days per month due to her impairments. [R. at 443-47.] This opinion is
given little to no weight, because it lacks balance and support by the record.
Clinical examinations of record reveal minimal findings. [Plaintiff] required only
routine and conservative treatment of her symptoms, and she could perform a
wide range of normal daily activities. For these reasons, the undersigned gives
this opinion little to no weight.
R. at 21. The ALJ considered Plaintiff’s GAF4 scores and gave them weight “only to the extent
that they are supportive of the findings herein.” R. at 22.
The GAF, or global assessment of functioning, scale rates psychological, social, and
occupational functioning; it is divided into ten ranges of functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000). The current
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
edition of the manual eliminated the GAF scale for reasons including “its conceptual lack of
clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable
psychometrics in routine practice.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 16 (5th ed. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).5
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
Plaintiff contends that the ALJ erred in evaluating the opinion evidence and her
credibility. With regard to the weight given by the ALJ to the various opinions, the Fourth
Circuit reiterated the following standard for considering medical opinions. Dunn v. Colvin, 607
F. App’x 264, 267-68 (4th Cir. 2015). When evaluating medical opinions, the ALJ should
consider “(1) whether the physician has examined the applicant, (2) the treatment relationship
between the physician and the applicant, (3) the supportability of the physician’s opinion, (4) the
consistency of the opinion with the record, and (5) whether the physician is a specialist.”
Johnson, 434 F.3d at 654; see 20 C.F.R. § 416.927. “An ALJ’s determination as to the weight to
be assigned to a medical opinion generally will not be disturbed absent some indication that the
ALJ has dredged up ‘specious inconsistencies,’” Dunn, 607 F. App’x at 267 (quoting Scivally v.
Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)), “or has failed to give a sufficient reason for the
weight afforded a particular opinion,” id. (citing 20 C.F.R. § 404.1527(d) (1998)); see 20 C.F.R.
A treating source’s opinion on issues of the nature and severity of the impairments will
be given controlling weight when well supported by medically acceptable clinical and laboratory
diagnostic techniques and when the opinion is consistent with the other substantial evidence in
the record. 20 C.F.R. § 416.927(c)(2); see Dunn, 607 F. App’x at 267. Conversely, however,
“the ALJ holds the discretion to give less weight to the testimony of a treating physician in the
face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). “[I]f
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, 76 F.3d at 590. In
other words, “a treating physician’s opinion is to be accorded comparatively less weight if it is
based on the physician’s limited knowledge of the applicant’s condition or conflicts with the
weight of the evidence.” Meyer v. Colvin, 754 F.3d 251, 256 (4th Cir. 2014) (citing Craig, 76
F.3d at 590; 20 C.F.R. § 404.1527(c)). Moreover, “the testimony of a non-examining physician
can be relied upon when it is consistent with the record. Furthermore, if the medical expert
testimony from examining or treating physicians goes both ways, a determination coming down
on the side of the non-examining, non-treating physician should stand.” Smith, 795 F.2d at 346
(citation omitted). An ALJ may reject a treating physician’s opinion in its entirety and afford it
no weight if the ALJ gives specific and legitimate reasons for doing so. See Bishop v. Comm’r of
Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014) (per curiam) (citing Holohan v. Massanari, 246
F.3d 1195, 1202 n.2 (9th Cir. 2001); Craig, 76 F.3d at 589-90).
A medical expert’s opinion as to whether one is disabled is not dispositive; opinions as to
disability are reserved for the ALJ and for the ALJ alone. See 20 C.F.R. § 416.927(d)(1).
Generally, the more the medical source presents relevant evidence to support his opinion, and the
better that he explains it, the more weight his opinion is given.
See id. § 416.927(c)(3).
Additionally, the more consistent the opinion is with the record as a whole, the more weight the
ALJ will give to it. See id. § 416.927(c)(4); see also Dunn, 607 F. App’x at 268.
Here, the ALJ gave “little to no weight” to Dr. Evans-Wood’s opinion because “it lacks
balance and support by the record. Clinical examinations of record reveal minimal findings.
[Plaintiff] required only routine and conservative treatment of her symptoms, and she could
perform a wide range of normal daily activities.” R. at 21. The ALJ gave “considerable weight”
to the opinion of Dr. Russell, the consultative examiner, “because it is balanced and supported by
objective evidence of record, particularly in view of evidence documenting limited abnormalities
on clinical examination and diagnostic studies and conservative treatment.” R. at 21. The ALJ
gave “little weight” to the opinion of Dr. Hershberger, the consultative examiner, because it
“lacks consistency with the record as a whole,” given Plaintiff’s activities. R. at 21.
As Plaintiff points out, the ALJ failed to identify any actual, specific evidence that
contradicts Dr. Evans-Wood’s opinion, other than “minimal findings” on clinical examination,
“conservative treatment of [Plaintiff’s] symptoms,” and Plaintiff’s “wide range of normal daily
activities.” R. at 21. The ALJ neither specified what aspect of Plaintiff’s course of treatment
was inconsistent with Dr. Evans-Wood’s opinion nor identified which of Plaintiff’s activities
conflicted with the limitations identified by Dr. Evans-Wood. See Byard v. Colvin, No. 1:15CV-11836, 2016 WL 4370063, at *17 (S.D.W. Va. July 26, 2016), report and recommendation
adopted, No. 1:15-11836, 2016 WL 4370044 (S.D.W. Va. Aug. 15, 2016). Further, in affording
“little weight” to Dr. Hershberger’s opinion on the basis of Plaintiff’s daily living activities (R. at
21), the ALJ failed to address how these activities affected her ability to perform work-related
functions for a full workday. Mascio v. Colvin, 780 F.3d 632, 637 (4th Cir. 2015). Further, the
ALJ “assigned the opinions of non-examining state agency consultants ‘considerable weight’
because their opinions were ‘consistent with the evidence [of record] as a whole,’ but failed to
specify the evidence to which [he] was referring” (R. at 21). Greene v. Colvin, No. 5:15-CV00243-FL, 2016 WL 4147682, at *4 (E.D.N.C. July 20, 2016), report and recommendation
adopted, No. 5:15-CV-243-FL, 2016 WL 4148309 (E.D.N.C. Aug. 4, 2016).
While “there is no rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision,” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)
(quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)), “the ALJ ‘must
build an accurate and logical bridge from the evidence to his conclusion.’” Monroe v. Colvin,
826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
“The failure of an ALJ to specify what treatment history or evidence does not support a
particular opinion means ‘the analysis is incomplete and precludes meaningful review.’” Knapp
v. Colvin, No. 7:15-CV-348, 2016 WL 4447836, at *3 (W.D. Va. Aug. 1, 2016) (quoting
Monroe, 826 F.3d at 191), report and recommendation adopted, No. 7:15-CV-00348, 2016 WL
4482419 (W.D. Va. Aug. 23, 2016). Although Defendant now maintains that Dr. Evans-Wood’s
opinion was inconsistent with the findings of Dr. Russell’s consultative examination and the
opinions of the state agency consultants, the Court “may not create or adopt post-hoc
rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision
itself.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). In other words, “[l]ongstanding principles of administrative law require [the Court] to review the ALJ’s decision based
on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that
attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1225 (9th Cir. 2009); see Ai Hua Chen v. Holder, 742 F.3d 171, 180 (4th
Cir. 2014) (reviewing court must judge propriety of agency action solely by grounds invoked by
agency). “Monroe confirms the ALJ’s obligation to explain his conclusions and point to the
record evidence to support those conclusions. Only then can a court engage in a meaningful
review to determine whether substantial evidence supports the ALJ’s decision.” Knapp, 2016
WL 4447836, at *3.
In short, “this Court is left to review the medical evidence and determine on its own how
the medical evidence supports the decision. . . . [T]hese type[s] of conclusory findings by an ALJ
make meaningful review by this Court impossible.” Switzer v. Colvin, No. 1:15CV212, 2016
WL 4182755, at *4 (W.D.N.C. July 5, 2016) (citing Fox v. Colvin, 632 F. App’x 750 (4th Cir.
2015) (per curiam); Mascio, 780 F.3d 632), report and recommendation adopted, No. 1:15-CV00212-MR-DLH, 2016 WL 4203839 (W.D.N.C. Aug. 5, 2016). Because the ALJ’s “analysis is
incomplete and precludes meaningful review,” Monroe, 826 F.3d at 191, remand is warranted in
this case. The Court need not address Plaintiff’s remaining arguments.
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 12) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 11) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 11) is GRANTED. Defendant’s final decision is
REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g).
This matter is
REMANDED for further proceedings consistent with this opinion. A separate order shall issue.
Date: September 15, 2016
Thomas M. DiGirolamo
United States Magistrate Judge
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