Juanita Britt v. Andrew Saul ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2177
JUANITA BRITT,
Plaintiff - Appellant,
v.
ANDREW M. SAUL, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:18-cv-00107-FL)
Argued: January 27, 2021 Decided: May 28, 2021
Before KING, KEENAN, and RICHARDSON, Circuit Judges.
Affirmed by unpublished opinion. Judge Richardson wrote the opinion, in which Judge
King and Judge Keenan joined.
ARGUED: William Lee Davis, III, Lumberton, North Carolina, for Appellant. Jillian
Elizabeth Quick, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for
Appellee. ON BRIEF: Cassia W. Parson, Special Assistant United States Attorney,
Office of General Counsel, SOCIAL SECURITY ADMINISTRATION, Baltimore,
Maryland; Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
RICHARDSON, Circuit Judge:
Juanita Britt appeals the Social Security Administration’s denial of her application
for disability insurance benefits and supplemental security income. Because we conclude
the administrative law judge appropriately weighed the medical evidence, conducted a
function-by-function analysis of Britt’s limitations that permits meaningful judicial review,
and asked a proper hypothetical question to the vocational expert, we affirm.
I. Background
A. Legal framework
To receive social security disability benefits under the Social Security Act, a
plaintiff has the burden of proving disability. The Act defines disability as an “inability to
do 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.” 20 C.F.R.
§§ 404.1505(a), 416.905(a). To make a disability determination, a Social Security
adjudicator goes through a sequential five-step inquiry. Walls v. Barnhart, 296 F.3d 287,
290 (4th Cir. 2002); 20 C.F.R. §§ 404.1520(a), 416.920(a).
At step one, the claimant must show that she was not engaged in “substantial gainful
activity” at the relevant time. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If she was
engaged in “substantial gainful activity,” she is not disabled and the inquiry ends. 20
C.F.R. §§ 404.1520(b), 416.920(b). But where the claimant is not so engaged, the analysis
goes on to step two.
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A claimant passing step one must, at step two, show a “severe” medical impairment.
20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A “severe” impairment is one that
significantly limits an individual’s ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). Without a severe impairment, the inquiry ends.
A claimant with a severe impairment can then show disability, at step three, if her
impairments meet or medically equal a “listed” impairment. 20 C.F.R. Part 404, Subpart
P, Appendix 1 (listed impairments); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii),
404.1520(d), 416.920(d), 404.1525, 404.1526. An impairment that meets or equals a listed
impairment establishes disability without more, so long as the impairment has lasted or is
expected to last for at least 12 months, unless death is expected. 20 C.F.R. §§ 404.1509,
416.909. Thus, if the impairment meets or equals a listed impairment and satisfies the
duration requirement, then the claimant is disabled, and the inquiry ends.
If the claimant is not found disabled at step three, then the inquiry goes on to step
four. There, the Social Security adjudicator will first determine the claimant’s residual
functional capacity. 20 C.F.R. § 404.1520(a)(iv), (e); 20 C.F.R. § 416.920(a)(iv), (e). A
claimant’s residual functional capacity is her ability to do physical and mental work
activities on a sustained basis. See 20 C.F.R. § 404.1545(a)(1) (A claimant’s “residual
functional capacity is the most [she] can still do despite [her] limitations.”). It must account
for all of the claimant’s impairments, including those that are not severe or fail to meet a
listed impairment. 20 C.F.R. §§ 404.1520(e), 416.920(e), 404.1545(a)(2), 416.945(a)(2);
SSR 96-8P, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996).
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Based on the claimant’s residual functional capacity, the claimant must show at step
four that she cannot perform the requirements of her past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If she can, then she is not disabled. 20 C.F.R.
§§ 404.1520(f), 416.920(f).
At step five, the burden shifts to the government to show the claimant has the
residual functional capacity—considering her age, education, work experience—to engage
in gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A)–(B); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); see Monroe v.
Colvin, 826 F.3d 176, 180 (4th Cir. 2016). If she can, then she is not disabled. But if she
cannot and she meets the duration requirement, then she is disabled. 20 C.F.R. §§
404.1520(g), 416.920(g).
B. Administrative law judge hearing and decision
Britt applied for disability insurance benefits and supplemental security income in
June 2014. The government denied Britt’s claims and denied her requested
reconsideration. She then sought a hearing before an administrative law judge.
Britt submitted evidence showing diagnoses of chronic pain, plantar fasciitis,
chronic fatigue, abdominal pain, gastropharongeal reflux disease (“reflux”), irritable bowel
syndrome (“irritable bowel”), constipation, rectal bleeding, bone spurs, achilles tendonitis,
depression, anxiety, and post-traumatic stress disorder.
The administrative law judge followed the required five-step sequential inquiry and
found that Britt was not disabled. At step one, the judge found that Britt had not performed
substantial gainful activity since she alleged that she became disabled in June 2014. At
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step two, the judge found that Britt had severe impairments of an irritable bowel, bone
spurs, bilateral plantar fasciitis, and major depressive disorder. But the judge determined
Britt’s chronic pain, reflux, and hypothyroidism were non-severe. At step three, the judge
found that Britt’s impairments did not, individually or in combination, meet or medically
equal a listed impairment. Before proceeding to step four, the judge set out Britt’s residual
functional capacity:
The claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b), subject to the following additional
limitations: never climb ladders, ropes, or scaffolds; occasionally kneel, crouch,
crawl, climb ramps/stairs, balance, and stoop; avoid all exposure to hazardous
machinery and unprotected heights; frequent bilateral gross and fine manipulation;
and sitting or standing as desired, such as in bench work occupations. Mentally, the
claimant is limited to simple, routine tasks with occasional interaction with the
public and co-workers, and occasional over the shoulder supervision.
A.R. 46–47.
Proceeding to step four, the judge found that Britt could no longer keep up with the
demands of her past relevant work as a fast food worker, cake decorator, or cook helper.
Finally, at step five, the judge found that Britt could perform jobs that existed in significant
numbers in the national economy. In making this step-five determination, the
administrative law judge hypothetically asked a vocational expert if jobs existed for a
person with Britt’s age, education, work experience, and residual functional capacity. The
vocational expert testified that there were light, unskilled occupations for such a person,
including hospital product assembler, inspector, hand packager, and small parts assembler.
The judge thus concluded that Britt was not disabled under the Act.
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C. District court proceedings
Britt challenged the agency action denying her benefits. See 42 U.S.C. § 405(g).
After both parties moved for judgment on the pleadings, the magistrate judge
recommended affirming the agency’s action.
The magistrate judge rejected Britt’s first allegation—that the administrative law
judge failed to assign weight to Britt’s medical opinion evidence—because the
administrative judge was only required to “assign weight to medical opinions, not medical
evidence” and the “records cited by [Britt] do not contain medical opinions.” J.A. 61. The
magistrate judge then rejected Britt’s second allegation—that the administrative judge
failed to provide a “function-by-function” narrative explaining how the evidence supported
his conclusions and also failed to consider the entire record—explaining that the discussion
of the residual-functional-capacity finding permitted meaningful review. Finally, the
magistrate judge rejected Britt’s claim that the administrative judge failed to include all her
limitations and restrictions in the hypothetical question to the vocational expert, concluding
that the question included all the limitations supported by the record. So the magistrate
judge recommended affirming the agency decision denying benefits.
The district court, reviewing de novo the magistrate judge’s recommendation,
agreed and denied Britt’s motion for judgment on the pleadings and granted the
Commissioner’s motion. The district court held that the agency applied the proper legal
standards and that substantial evidence supported the factual findings. Britt timely
appealed, and we have jurisdiction. See 42 U.S.C. § 405(g); 28 U.S.C. § 1291.
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II. Discussion
We review de novo a district court’s decision on a motion for judgment on the
pleadings. Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). But our review of the
agency action is circumscribed. 42 U.S.C. § 405(g). We must affirm a disability
determination so long as the agency applied correct legal standards and the factual findings
are supported by substantial evidence. Mascio, 780 F.3d at 634. Substantial evidence
“means—and means only—‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). It consists of
“more than a mere scintilla of evidence but may be somewhat less than a preponderance.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966)).
A. Evaluation of medical evidence
On appeal, Britt mainly challenges the administrative law judge’s alleged failure to
properly evaluate and assign weight to the opinions of her treating physicians and mental-
health professionals.
Throughout the five-step evaluation process, the agency must evaluate every
medical opinion received, regardless of the source. 20 C.F.R. §§ 404.1527(c), 416.927(c);
see Dowling v. Comm’r of Soc. Sec. Admin., 986 F.3d 377, 384 (4th Cir. 2021). 1 In general,
1
“Several years ago, new rules were promulgated altering the way in which the
Commissioner evaluates medical opinion evidence. Because these new rules apply only to
(Continued)
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the administrative judge should give more weight to the opinion of an examining medical
source than to the opinion of a non-examining source. §§ 404.1527(c), 416.927(c). And
“more weight” is also given to opinions of treating sources 2—who have provided ongoing
treatment, equipping them with the ability to provide “a detailed, longitudinal picture” of
a claimant’s alleged disability—than non-treating sources, such as consultative examiners.
§§ 404.1527(c), 416.927(c); see Arakas v. Comm’r of Soc. Sec. Admin., 983 F.3d 83, 106
(4th Cir. 2020); Dowling, 986 F.3d at 384. Weighing other evidence, including medical
evidence that is not a medical opinion, remains largely within the province of the
administrative law judge. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020).
The administrative law judge must afford this greater weight only to a medical
opinion from a treating physician, not all medical evidence in a physician’s file or
statement. 20 C.F.R. §§ 404.1527(c), 416.927(c); see Dowling, 986 F.3d at 384; Arakas,
983 F.3d at 106–07. Medical opinions are “statements from acceptable medical sources
that reflect judgments about the nature and severity of [a claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis, and prognosis, what [the claimant] can
still do despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20
C.F.R. §§ 404.1527(a)(1), 414.927(a)(1) (emphasis added); see also Brown v. Comm'r Soc.
claims filed ‘on or after March 27, 2017,’ they have no impact on [Britt’s] case.” Barbare
v. Saul, 816 F. App’x 828, 832 n.2 (4th Cir. 2020) (quoting 20 C.F.R. § 404.1520c).
2
A treating source is “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.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
8
Sec. Admin., 873 F.3d 251, 271 (4th Cir. 2017) (finding a doctor’s “interpretation of the
MRI and conclusion that it showed an impairment” to be a “medical opinion”). It is the
medical opinion—reflecting medical judgment about the nature and severity of a
claimant’s symptoms, diagnoses, or limitations—and not statements recounting facts or a
claimant’s subjective complaints that is entitled to greater weight.
The information on which Britt seeks to rely—such as mere observations and her
recorded subjective complaints during office visits—contains no medical judgment, which
is the essence of medical opinions. Many documents Britt cites merely record the
symptoms Britt has reported feeling and state past diagnoses, among other information
Britt does not specifically discuss. See A.R. 408–22. But these recitations need not be
given dispositive weight. Because the administrative law judge need only evaluate and
attribute weight to a treating doctor’s medical opinions, there was no reversible error in
failing to assign weight to this medical evidence.
For example, in one report from Southeastern Regional Physician Services, the
physician recorded that Britt had lower abdominal pain radiating to her back, that she was
experiencing rectal bleeding, and that she had previously been diagnosed with anemia. See
A.R. 437. But this is the physician’s summary of Britt’s descriptions of symptoms and
past diagnoses, not medical opinions, as the doctor exercised no judgment in describing
those matters. While the report also includes a diagnosis of rectal bleeding and
constipation, the administrative law judge gave that weight, acknowledging this diagnosis
in his decision. See A.R. 48. Looking to a Cape Fear Podiatry Associates report, a
physician diagnosed Britt with plantar fasciitis, stated that she had a pins and needle type
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sensation in the medical band of the plantar facia, and prescribed her a dancer’s pad. See
A.R. 432. And again, the administrative law judge accepted the diagnosis of plantar
fasciitis, finding it to be a severe impairment. See J.A. 44. Britt also directs us to Dr.
Patrick Ricotta’s report which noted that Britt had trouble being independent and could not
work based on her pain level of 8/10. See A.R. 686–88. Yet this information was recorded
under the “Subjective Examination” section, which records Britt’s subjective assessment
of her abilities, lacking any judgment from an acceptable medical source. See A.R. 686.
In contrast, the report included a section labeled “Objective Examination”—which
explains the results of certain tests conducted—and a section labeled “Assessment” where
Dr. Ricotta explicitly said, “In my professional opinion, this patient requires skilled
psychical therapy . . . Overall rehabilitation potential is good.” J.A. 686–87.
Ultimately, Britt’s assertion that the administrative law judge erred by failing to
assign more weight to the opinions of her treating physicians and mental health
professionals lacks merit. What opinions she did submit, the administrative law judge
appropriately weighed. The agency must consider the entire record, but is only required
to attribute weight to medical opinions in the record. And that was done. We need not
reweigh the non-medical-opinion evidence Britt identifies in her brief. Shinaberry, 952
F.3d at 123.
B. Residual functional capacity
An individual’s residual functional capacity is the capacity she possesses despite the
limitations caused by impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). It
depends on all relevant medical evidence and other record evidence, including a claimant’s
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own description of her limitations. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). When a
claimant has several impairments, including non-severe impairments, the administrative
law judge must consider their cumulative effect in making a disability determination. 20
C.F.R. §§ 404.1545(a)(2), 416.945(a)(2); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir.
1989) (citations omitted) (“[I]n determining whether an individual’s impairments are of
sufficient severity to prohibit basic work related activities, an ALJ must consider the
combined effect of a claimant’s impairments.”).
The administrative law judge “must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a function-by-
function basis, including the functions listed in the regulations.” Mascio, 780 F.3d at 636
(internal quotation marks omitted). The assessment must also include “a narrative
discussion describing how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” Id. (quoting SSR 96–8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996)).
“Only after such a function-by-function analysis” can the residual functional capacity be
expressed “‘in terms of the exertional levels of work.’” Monroe, 826 F.3d at 179 (quoting
Mascio, 780 F.3d at 636); see also Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)
(observing that the administrative law judge must “build an accurate and logical bridge
from [that] evidence to his conclusion” (quoting Monroe, 826 F.3d at 189)).
Even so, we have rejected “a per se rule requiring remand when the [administrative
law judge] does not perform an explicit function-by-function analysis.” Mascio, 780 F.3d
at 636 (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). Rather, we explained
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that “[r]emand may be appropriate” where the administrative law judge “fails to assess a
claimant’s capacity to perform relevant functions, despite contradictory evidence in the
record, or where other inadequacies in the [administrative law judge’s] analysis frustrate
meaningful review.” Id. (quoting Cichocki, 729 F.3d at 177). Meaningful review is
frustrated—and remand necessary—only where “we are unable to fathom the [] rationale
in relation to evidence in the record.” Cichocki, 729 F.3d at 177 (internal quotation marks
omitted).
Here, the administrative law judge’s assessment of Britt’s residual functional
capacity does not frustrate meaningful review. The administrative law judge considered
all the evidence when determining which limitations should account for Britt’s
impairments. And he adequately explained his reasons for imposing certain mental and
physical limitations. While the administrative law judge did not specifically address Britt’s
chronic pain, reflux, and hypothyroidism in the residual-functional-capacity analysis,
neither our caselaw nor the regulations explicitly require this. The judge is only required
to consider these non-severe impairments. And even if specifically addressing these
impairments was required, our review is not frustrated by this omission as these
impairments were addressed under step two and deemed to be non-severe limitations. See
A.R. 45 (“Specifically, the claimant was reportedly treated at the pain clinic for her chronic
pain, and her [reflux] is managed with prescription Dexilant. Treatment notes indicate that
her hypothyroidism is stable.” (internal citations omitted)). The discussion in step-two that
these limitations had a minimal impact on vocation and were being managed tells us what
impact these limitations had in the residual-functional-capacity analysis. We can conduct
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a meaningful review without making an administrative law judge repeat himself. Thus, we
find the administrative law judge’s analysis to be proper here. 3
C. Hypothetical
Lastly, Britt argues that the administrative law judge presented a legally insufficient
hypothetical to the vocational expert. A vocational expert may be used at steps four and
five to assist “in determining whether there is work available in the national economy
which this particular claimant can perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.
1989). For a vocational expert’s opinion to be “relevant or helpful,” it must be responsive
to a proper hypothetical question. Id. A proper hypothetical question “fairly set[s] out all
of claimant’s impairments” that the record supports. Id. Put another way, for our review
an administrative law judge can rely on the answer to a hypothetical question so long as
the question “adequately reflect[s]” a residual functional capacity that is supported by
sufficient evidence. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005); Mascio, 780
F.3d at 638 (noting that a hypothetical question that includes a correctly determined
residual functional capacity is a proper hypothetical).
3
The administrative law judge found Britt to have a mild impairment in
concentration, persistence, and pace but did not address her ability to stay on task in his
residual-functional-capacity analysis or explain why he did not think it necessary to include
it. It is unclear whether an administrative law judge must specifically address a claimant’s
mild impairment in concentration, persistence, or pace in the residual-functional-capacity
analysis. See Mascio, 780 F.3d at 638. But Britt failed to raise this issue before the agency
and the district court. So we do not consider it. See Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 242 (4th Cir. 2009) (“Absent exceptional circumstances, . . . we do not
consider issues raised for the first time on appeal.” (quoting Volvo Const. Equip. N. Am.,
Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004))).
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Britt argues that the administrative law judge’s hypothetical question to the
vocational expert did not include “all of [her] limitations and restrictions, as well as her
impairments.” Appellant’s Opening Br. 24. But the hypothetical question need not list
each impairment; it need only give the claimant’s age, education, experience, and residual
functional capacity. See Mascio, 780 F.3d at 637–38. And the hypothetical did so here.
So Britt’s argument on appeal fails.
While the argument Britt raises fails, we independently note a discrepancy existed
between the administrative law judge’s residual-functional-capacity finding and the
hypothetical question posed. After the vocational expert was asked the hypothetical
question considering the claimant’s age, education, experience, and residual functional
capacity, the expert asked for clarification on whether Britt could maintain a standing or
sitting position for at least 30 minutes. A.R. 95–96. Recalling Britt’s earlier testimony
that she could stand for an hour and then sit for 30 minutes, see A.R. 76, the administrative
law judge answered that Britt could stand for an hour and then would need to sit for a half
hour. But the administrative law judge had defined Britt’s residual functional capacity as
permitting her to sit and stand “as desired.” A.R. 46. Whether the administrative law judge
was permitted, as part of the hypothetical question, to supplement his residual-functional-
capacity finding with the claimant’s own testimony presents an interesting question. But
Britt failed to raise this objection to the hypothetical before the administrative law judge.
And before the district court, Britt made no such argument. And on appeal to this Court,
Britt failed to assert it. As this challenge to the hypothetical was not raised during any of
these opportunities, we may not identify the issue for her and address its merits. See
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Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (a claimant waives issues not
presented to the district court and not properly presented on appeal).
* * *
The administrative law judge thoughtfully considered and analyzed Britt’s
impairments throughout the five-step sequential evaluation process. Our narrow scope of
review prevents us from disturbing the administrative law judge’s decision here. The
judgment below is therefore
AFFIRMED.
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