PERRYMAN v. SAUL

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/09/2022, recommending that the Commissioner's decision finding no disability be vacated, and th at this matter be remanded under sentence four of 42 U.S.C. 405(g) for further administrative proceedings, including re-evaluation of Plaintiff's subjective symptom reporting and, in particular, his alleged inability to afford treatment. As a re sult, Plaintiff's Motion for Judgment Reversing Decision of the Commissioner of Social Security (Docket Entry 16 ) should be granted, and Defendant's Motion for Judgment on the Pleadings (Docket Entry 18 ) should be denied. (Bowers, Alexis)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHNNY PERRYMAN,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.1

)
)
)
)
)
)
)
)
)
)
)

1:21CV305

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Johnny Perryman, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Income (“SSI”).

Plaintiff’s

claim

(Docket Entry 2.)

for

Supplemental

Security

Defendant has filed the

certified administrative record (Docket Entry 13 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 16, 18; see also Docket Entry 16-1 (Plaintiff’s Brief);
Docket Entry 19 (Defendant’s Memorandum)).

For the reasons that

follow,

matter

the

Court

should

remand

this

for

further

administrative proceedings.

1

President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 1 of 21

I.

PROCEDURAL HISTORY

Plaintiff applied for SSI (Tr. 223-31), alleging a disability
onset date of December 15, 2015 (see Tr. 224).

Upon denial of that

application initially (Tr. 68-75, 87-95) and on reconsideration
(Tr. 76-84, 96-105), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 106-08).

Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 37-67.)

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 10-20.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-7,
220-22, 331-33), thereby making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since December 15, 2015, the alleged onset date.
2.
[Plaintiff] has the following severe impairments:
degenerative disc disease with radiculopathy and
sciatica.
. . .
3.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except never climb
ladders, ropes, or scaffolds, occasionally climb ramps or
stairs; never kneel or crawl; occasionally balance,
2

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 2 of 21

stoop, or crouch; occasionally push or pull with the
legs; never work near or around heights or dangerous
machinery; and sit or stand at 30 to 45 minute intervals.
. . .
5.
[Plaintiff] is unable to perform any past relevant
work.
. . .
9.
Considering [Plaintiff]’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from December 15, 2015, through
the date of this decision.
(Tr.

16-20

(bold

font

and

internal

parenthetical

citations

omitted).)
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Even given those limitations, the Court should remand this case for
further administrative proceedings.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

3

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 3 of 21

the Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

“It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).

“If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there
is

substantial

evidence.”

Hunter,

993

F.2d

at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the

4

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 4 of 21

claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).2

“To

regularize

the

adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id.

2

The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program provides benefits to disabled persons who have contributed to
the program while employed.
[SSI] provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations
omitted).

5

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 5 of 21

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177.

Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity

3

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 6 of 21

(‘RFC’).”

Id. at 179.4

Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

See id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.5

4

“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
5

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

7

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 7 of 21

B.

Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred in penalizing Plaintiff for his failure to
afford medical treatment” (Docket Entry 16-1 at 3 (bold font and
single-spacing omitted)); and
2)

“[t]he

ALJ

failed

to

properly

evaluate

Plaintiff’s

complaints, failing to articulate ‘specific and adequate reasons’
for discounting his testimony” (id. at 7 (bold font and singlespacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 19 at 4-10.)
1. Inability to Afford Medical Treatment

Plaintiff’s first issue on review argues that “[t]he ALJ erred
in

penalizing

Plaintiff

for

his

failure

to

afford

medical

treatment.”

(Docket Entry 16-1 at 3 (bold font and single-spacing

omitted).)

In particular, Plaintiff maintains that, although the

ALJ

acknowledged

that

Plaintiff

“‘was

working

with

financial

counseling as he d[id] not have medical insurance,’” the ALJ then
observed that Plaintiff “‘ha[d] not generally received the type of
medical treatment one would expect for a disabled individual,’” as
well as noted the gap in treatment between 2017 and 2020.
4 (quoting Tr. 17).)

(Id. at

Plaintiff points out that “‘[a]n ALJ should

not discount a claimant’s subjective complaints on the basis of

8

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 8 of 21

[his] failure to seek medical treatment when [he] has asserted –
and the record does not contradict – that [he] could not afford
such treatment.’”
2:20CV3372,

2021

(Id. at 3-4 (quoting Starnes v. Kijakazi, No.
WL

4155648,

at

*5

(D.S.C.

Aug.

18,

2021)

(unpublished), recommendation adopted, 2021 WL 4155216 (D.S.C.
Sept. 13, 2021) (unpublished)).)

According to Plaintiff, “[w]here

there is evidence that Plaintiff had an impairment and further
evidence that he may not have had the resources to properly treat
that impairment, an ALJ must make findings as to whether Plaintiff
was unable to get healthcare due to an inability to afford it.”
(Id. at 6 (citing Dozier v. Colvin, No. 1:14CV29, 2015 WL 4726949,
at *3 (D.S.C. Aug. 10, 2015) (unpublished)).)

Those contentions

have merit and warrant remand.
The United States Court of Appeals for the Fourth Circuit has
held that “[a] claimant may not be penalized for failing to seek
treatment [ ]he cannot afford,” because “‘[i]t flies in the face of
the patent purposes of the . . . Act to deny benefits to someone
. . . too poor to obtain medical treatment that may help him.’”
Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (quoting
Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)).

An

administrative ruling further expounds on an ALJ’s duties when a
claimant alleges an inability to afford treatment as follows:
. . . [I]f the frequency or extent of the treatment
sought by an individual is not comparable with the degree
of the individual’s subjective complaints, . . . [the
ALJ] may find the alleged intensity and persistence of an
9

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 9 of 21

individual’s symptoms are inconsistent with the overall
evidence of record.
[The ALJ] will not find an
individual’s symptoms inconsistent with the evidence in
the record on this basis without considering possible
reasons he or she may not . . . seek treatment consistent
with the degree of his or her complaints. [The ALJ] may
need to contact the individual regarding the lack of
treatment or, at an administrative proceeding, ask why he
or she has not . . . sought treatment in a manner
consistent with his or her complaints. When [the ALJ]
consider[s] the individual’s treatment history, [the ALJ]
may consider (but [is] not limited to) one or more of the
following:
. . .
An individual may not be able to afford treatment and may
not have access to free or low-cost medical services.
. . .
[An ALJ] will consider and address reasons for not
pursuing treatment that are pertinent to an individual’s
case. [The ALJ] will review the case record to determine
whether there are explanations for inconsistencies in the
individual’s statements about symptoms and their effects,
and whether the evidence of record supports any of the
individual’s statements at the time he or she made them.
[The ALJ] will explain how [he or she] considered the
individual’s reasons in [the ALJ’s] evaluation of the
individual’s symptoms.
Social Security Ruling 16-3p, Titles II and XVI: Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304, at *9-10 (Oct. 25,
2017) (“SSR 16-3p”) (emphasis added) (bullet omitted).
Here, Plaintiff testified that he had lived in an apartment
for two years with a friend who paid the rent and utilities (see
Tr. 44-45), that he had unsuccessfully applied for food stamps (see
Tr. 45-46), that he started treating with Dr. Christopher Hong Chu
in April 2020 (see Tr. 60), who helped Plaintiff gain entry into a

10

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 10 of 21

program called Health Care Access involving $10 co-pays (see Tr.
52-53), and that, before his entry into Health Care Access, he “had
been going back and forth to just the emergency room” (Tr. 60).
The record corroborates Plaintiff’s testimony, in that an August
2017 treatment note reflects that Plaintiff had recently sought
treatment in the Forsyth emergency room for sciatic nerve pain, and
that he “[wa]s currently working with financial counseling as he
d[id] not have medical insurance.”

(Tr. 339 (emphasis added).)

Consistent with Plaintiff’s testimony, no treatment records exist
after November 2017 until Dr. Chu referred Plaintiff to orthopedist
Dr.

Alejandro

Jose

February 14, 2020.

Marquez-Lara,

who

(See Tr. 359.)

evaluated

Plaintiff

on

Plaintiff sought regular

treatment for his sciatic pain after that time. (See Tr. 388-415.)
The ALJ provided the following analysis of Plaintiff’s alleged
inability to afford treatment:
As for [Plaintiff]’s statements about the intensity,
persistence, and limiting effects of his . . . symptoms,
they are inconsistent because the record confirms a
diagnosis and treatment for chronic bilateral low back
pain with bilateral sciatica dating back to 2017;
however, [Plaintiff] has not generally received the type
of medical treatment one would expect for a disabled
individual. The record does note that he was working
with financial counseling as he d[id] not have medical
insurance. After the diagnosis and treatment in 2017,
the record jumps to treatment in 2020.
(Tr.

17

omitted).)

(emphasis

added)

(internal

parenthetical

citations

For the reasons explained more fully below, that

analysis runs afoul of SSR 16-3p.

11

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 11 of 21

As

the

above-quoted

analysis

shows,

the

ALJ

here

both

acknowledged that Plaintiff asserted an inability to afford medical
treatment to explain the gap in treatment between 2017 and 2020 and
that evidence in the record corroborated that assertion (see Tr. 17
(observing that “record d[id] note that [Plaintiff] was working
with financial counseling as he d[id] not have medical insurance)).
The ALJ, however, then inexplicably found Plaintiff’s subjective
symptom

reporting

“inconsistent

because

.

.

.

[he]

had

not

generally received the type of medical treatment one would expect
for

a

disabled

individual”

(id.).

In

other

words,

the

ALJ

“review[ed] the case record [and] determine[d ] there [we]re
explanations for [Plaintiff’s lack of medical treatment], and
[that] the evidence of record support[ed his] statements at the
time

he

.

.

.

made

them,”

but

the

ALJ

thereafter

rejected

Plaintiff’s alleged inability to afford treatment without any
“expla[nation of] how [the ALJ] considered [Plaintiff]’s reasons in
[the ALJ’s] evaluation of [Plaintiff]’s symptoms,” SSR 16-3p, 2017
WL 5180304, at *9-10 (emphasis added).

(See Tr. 17.)

The ALJ’s

failure of explanation precludes meaningful review by this Court of
the

ALJ’s

6:17-2480,

determination.
2018

(unpublished)

WL

See

5724121,

(“[B]ecause

the

at

Elmore
*13

v.

Berryhill,

(D.S.C.

plaintiff

Oct.

presented

No.

12,

CV

2018)

significant

evidence to suggest she was unable to afford additional medical
treatment by specialists, the ALJ erred in considering her failure

12

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 12 of 21

to obtain treatment by specialists after mid-2013 as a factor that
reduced the credibility of her allegations without also considering
her

reasons

for

not

obtaining

additional

treatment.”),

recommendation adopted, 2018 WL 5719643 (D.S.C. Oct. 31, 2018)
(unpublished);

Sapp

v.

Berryhill,

No.

CV

1:17-2442,

2018

WL

5270039, at *11 (D.S.C. Sept. 28, 2018) (unpublished) (“The ALJ’s
decision relied upon [the p]laintiff’s lack of consistent treatment
to discount her allegations, but failed to address the ‘reasons for
not pursuing treatment’ pursuant to SSR 16-3p.

In particular, the

ALJ failed to address the evidence in the record relaying [the
p]laintiff was ‘not [] able to afford treatment’ as required by SSR
16-3p and Fourth Circuit precedent.” (quoting Lovejoy, 790 F.2d at
1117)), recommendation adopted, 2018 WL 5266584 (D.S.C. Oct. 23,
2018) (unpublished); compare Byers v. Berryhill, No. 1:17CV103,
2018 WL

318466,

at

*9

(M.D.N.C.

Jan.

5,

2018)

(unpublished)

(finding no error in ALJ’s rejection of the plaintiff’s alleged
inability to afford treatment where ALJ specifically found that
“there [wa]s no indication that [the plaintiff] ha[d] explored the
availability of free or reduced cost medical services,” that “it
[wa]s incumbent on [the plaintiff] to explore such availability
rather than simply concluding that he c[ould ]not pay for any
medical care,” that “a hospital emergency room [could] not refuse
care based on an individual’s inability to pay for care,” that, “if
[the plaintiff] had the extreme pain and functional limitations to

13

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 13 of 21

which he testified, . . . it would be reasonable to expect that he
would seek treatment, at least on occasion, rather than simply
enduring the purported extreme pain and functional limitations,”
and

that

“[the

plaintiff]

was

not

reticent

to

seek

medical

treatment when he had a seizure, which . . . undermine[d] the
credibility of his testimony regarding his failure to seek medical
treatment”), recommendation adopted, slip op. (M.D.N.C. Apr. 4,
2018) (Tilley, S.J.).

As explained more fully in connection with

Plaintiff’s second issue on review, that error by the ALJ does not
qualify as harmless.
In

light

assignment

of

of

the

error

foregoing

analysis,

establishes

prejudicial

Plaintiff’s
error,

first

requiring

remand.
2. Analysis of Plaintiff’s Subjective Symptom Reporting
Plaintiff’s second and final assignment of error maintains
that “[t]he ALJ failed to properly evaluate Plaintiff’s complaints,
failing

to

articulate

‘specific

and

adequate

reasons’

for

discounting his testimony.” (Docket Entry 16-1 at 7 (bold font and
single-spacing omitted).)

In that regard, Plaintiff emphasizes

that

that

“[t]he

ALJ

found

Plaintiff’s

impairments

were

inconsistent with the medical evidence in the record ‘for the
reasons explained in th[e ALJ’s] decision,’” (id. at 9 (quoting Tr.
17)),

but

beyond

the

finding

“that

Plaintiff

did

not

treat

enough . . . [t]he ALJ’s remaining rationale seems to be absent”

14

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 14 of 21

(id.).

Plaintiff further points out that, although “the ALJ d[id]

discuss

some

record

evidence

after[

his

finding

regarding

Plaintiff’s lack of treatment]” (id. (citing Tr. 17-18), “[t]o any
extent this presents rationale, it would also be inadequate[
because] Plaintiff’s subjective complaints have an objective basis”
(id.; see also id. at 8-10 (summarizing Plaintiff’s subjective
complaints and detailing evidence Plaintiff believes supports those
complaints (citing Tr. 43, 53-57, 359, 362-63, 399, 404-06, 413))).
Plaintiff’s arguments further solidify the grounds for remand
established in his first assignment of error.
SSR 16-3p (consistent with the Commissioner’s regulations)
adopts a two-part test for evaluating a claimant’s statements about
symptoms.

See SSR 16-3p, 2017 WL 5180304, at *3; see also 20

C.F.R. § 416.929.
an

underlying

First, the ALJ “must consider whether there is
medically

determinable

physical

or

mental

impairment(s) that could reasonably be expected to produce an
individual’s symptoms, such as pain.”

SSR 16-3p, 2017 WL 5180304,

at *3. A claimant must provide “objective medical evidence from an
acceptable medical source to establish the existence of a medically
determinable

impairment

that

could

produce [the] alleged symptoms.”
consists

of

medical

signs

Id.

reasonably

be

expected

to

Objective medical evidence

(“anatomical,

physiological,

or

psychological abnormalities established by medically acceptable
clinical diagnostic techniques”) and laboratory findings “shown by

15

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 15 of 21

the use of medically acceptable laboratory diagnostic techniques.”
Id.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work.
at *4.

See id.

In making that determination, the ALJ must “examine the

entire case record, including the objective medical evidence; an
individual’s

statements

about

the

intensity,

persistence,

and

limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.”

Id.

Where

relevant, the ALJ will also consider the following factors in
assessing the extent of the claimant’s symptoms at part two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and

16

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 16 of 21

7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
Id. at *7-8.

The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
the

degree

of

individual.”

impairment-related

symptoms

alleged

by

the

Id. at *5 (emphasis added).

In this case, the ALJ found, at part one of the subjective
symptom

analysis,

that

Plaintiff’s

“medically

determinable

impairments could reasonably be expected to cause the alleged
symptoms,” but then determined, at part two, that his “statements
concerning the intensity, persistence and limiting effects of
th[o]se symptoms [we]re not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained
in th[e ALJ’s] decision.”

(Tr. 17 (emphasis added).)

In the very

next paragraph, the ALJ deemed Plaintiff’s “statements about the
intensity,

persistence,

and

limiting

effects

of

his

.

.

.

symptoms . . . inconsistent because the record confirm[ed] a
diagnosis and treatment for chronic bilateral low back pain with
bilateral sciatica dating back to 2017,” but Plaintiff “ha[d] not
generally received the type of medical treatment one would expect
for a disabled individual” as, “[a]fter the diagnosis and treatment
in 2017, the record jump[ed] to treatment in 2020.”

(Tr. 17.)

17

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 17 of 21

As discussed above in the setting of Plaintiff’s first issue
on review, the ALJ did not adequately explain his decision to
reject Plaintiff’s alleged inability to afford treatment, and the
ALJ did not, in that same paragraph, offer any other reason for
discounting Plaintiff’s subjective symptom reporting (see id.).
Moreover, the ALJ did not discuss Plaintiff’s ability to engage in
daily activities (see Tr. 16-18), despite the fact that Plaintiff
completed a Function Report on which he detailed his ability to
engage in such activities (see Tr. 270-77). Significantly, the ALJ
could not have supported his subjective symptom evaluation with any
medical

opinion

evidence,

because

the

only

opinions

the

ALJ

considered (and deemed “minimally persuasive”) came from the state
agency medical consultants (Tr. 18), who offered their opinions in
June 2018 and March 2019 (see Tr. 68-74, 76-83), i.e., well prior
to Plaintiff entering the Health Care Access program and resuming
regular treatment in February 2020 (see Tr. 359-63), and thus found
insufficient evidence to analyze Plaintiff’s impairments and their
functional limitations (see Tr. 68-74, 76-83).6
As Plaintiff argues (see Docket Entry 16-1 at 9), the ALJ did
thereafter provide a one-paragraph summary of the medical evidence
6

Although not raised by either party (see Docket Entries 16-1, 19), the ALJ
neglected to evaluate the persuasiveness of an opinion offered by Dr. MarquezLara on February 14, 2020 (see Tr. 18; see also Tr. 373-74 (opining, in “To Whom
It May Concern” letter, as follows: “It is my medical opinion that [Plaintiff]
has severe spinal stenosis. Because of this he has nerve damage to [his] left
leg resulting in weakness and muscle atrophy [and is] unable to work full duty.
He may likely require a large lumbar spine surgery in the near future, but even
with the intervention there is low likelihood of restoration of full function.”).
On remand, the ALJ should discuss the persuasiveness of that opinion.

18

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 18 of 21

(see Tr. 17-18); however, that summary describes many findings that
support Plaintiff’s reports of disabling back and sciatic pain (see
Tr. 17 (describing February 2020 orthopedic examination finding
lumbar tenderness to palpation, antalgic gait, pain on lumbar range
of motion, and strength deficit in left leg that surgery might not
correct (citing Tr. 362-63); see also Tr. 18 (noting April 2020 MRI
of lumbar spine found “multilevel degenerative changes resulting in
moderate to advanced stenosis, and a synovial cyst” (emphasis
added) (citing Tr. 413))).7

Although the ALJ did note Plaintiff’s

report “in June 2020 . . . that Aleve/Naproxen alleviate[d] the

7

Notably, the ALJ did not include in his summary the orthopedist’s findings that
Plaintiff displayed an antalgic posture leaning to the right (see Tr. 362),
decreased sensation in the left leg in an L3-5 distribution (see Tr. 363), and
“[o]bvious left quad[riceps] atrophy” (id. (emphasis added)). (See Tr. 17-18.)
The ALJ’s cursory description of Plaintiff’s lumbar spine MRI also fails to
capture the significance of its findings (see Tr. 18), which include:
L2-L3: Degenerative disc disease with posterior broad-based disc
bulge, superimposed right foraminal and extraforaminal disc
protrusion, mild degenerative facet disease, and ligamentum flavum
thickening resulting in mild to moderate central stenosis, right
greater than left lateral recess stenosis, as well as moderate right
and mild left foraminal stenosis.
L3-L4: Degenerative disc disease with posterior broad-based disc
bulge, mild degenerative facet hypertrophy, and ligamentum flavum
thickening resulting in moderate to advanced canal and lateral
recess narrowing, as well as moderate right and advanced left
foraminal stenosis.
L4-L5: Degenerative disc disease with posterior broad-based disc
bulge, superimposed posterior central disc herniation dissecting
superiorly in the epidural space, bilateral degenerative facet
hypertrophy, and ligamentum flavum thickening results in moderate to
advanced central and lateral recess stenosis, as well as advanced
left greater than right foraminal stenosis.
L5-S1: Posterior broad-based disc bulge combined with bilateral
degenerative facet hypertrophy, ligamentum flavum thickening, and
ventromedial oriented synovial cyst arising from the right L5-S1
facet joint extending into the right lateral recess with compression
of the descending right Sl and S2 nerve roots. Overall mild central
stenosis as well as advanced right greater than left foraminal
stenosis.
(Tr. 412-13 (emphasis added).)

19

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 19 of 21

symptoms, and Gabapentin alleviated the paresthesias” (Tr. 18
(citing Tr. 399)),

as well as that Plaintiff “displayed a full

range of motion[ and] no tenderness to palpation” (id. (citing Tr.
401)), the ALJ did not mention that the same examination documented
reduced strength and sensation in Plaintiff’s left leg (see id.;
see also Tr. 401).

The ALJ’s incomplete and relatively one-sided

summarization of the medical evidence, standing alone, simply does
not adequately support the ALJ’s decision to discount Plaintiff’s
subjective symptom reporting, particularly given the inadequate
consideration of the matters addressed in connection with the first
issue on review.

See Worsham v. Kijakazi, No. 4:20CV86, 2021 WL

3878898, at *7 (E.D.N.C. July 28, 2021) (unpublished) (“While the
ALJ cited other reasons in support of the RFC determination, the
decision appears to rest largely on . . . [the plaintiff]’s failure
to return to [a physician] to pursue surgical options [due to an
inability to afford such treatment]. The ALJ’s failure to properly
address th[at] issue makes it impossible for the court to know how
much weight the ALJ placed on this factor or to trace the ALJ’s
reasoning.”), recommendation adopted, 2021 WL 3863348 (E.D.N.C.
Aug. 30, 2021) (unpublished); Elmore, 2018 WL 5724121, at *13
(deeming ALJ’s failure to consider the plaintiff’s reasons for not
obtaining additional treatment not harmless error, because ALJ
relied

on

several

other

reasons

to

discount

the

plaintiff’s

20

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 20 of 21

subjective complaints and court could not gauge extent to which ALJ
relied on the plaintiff’s failure to seek further treatment).
III.

CONCLUSION

Plaintiff has established errors warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated, and that this matter be remanded
under sentence four of 42 U.S.C. 405(g) for further administrative
proceedings, including re-evaluation of Plaintiff’s subjective
symptom reporting and, in particular, his alleged inability to
afford treatment.

As a result, Plaintiff’s Motion for Judgment

Reversing Decision of the Commissioner of Social Security (Docket
Entry 16) should be granted, and Defendant’s Motion for Judgment on
the Pleadings (Docket Entry 18) should be denied.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 9, 2022

21

Case 1:21-cv-00305-LCB-LPA Document 20 Filed 05/09/22 Page 21 of 21