Garrett Fox v. Carolyn Colvin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2237
GARRETT W. FOX,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00244-MOC-DLH)
Argued: October 27, 2015 Decided: December 17, 2015
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Charlotte Williams Hall, CHARLES T. HALL LAW FIRM, P.C.,
Raleigh, North Carolina, for Appellant. Jeanne Dana Semivan,
SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for
Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney,
Paul B. Taylor, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Garrett W. Fox (“Appellant”) appeals the district
court’s order upholding the denial of his application for
disability insurance benefits and supplemental security income.
Appellant argues that the administrative law judge (“ALJ”)
failed to sufficiently explain his findings, in violation of
Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013), and improperly
evaluated the medical opinion of Appellant’s doctor.
We conclude that the ALJ’s opinion failed to provide
sufficient reasoning to allow for meaningful judicial review.
Accordingly, we vacate the district court’s judgment and direct
the district court to remand to the agency for further
proceedings consistent with this opinion.
I.
A.
1.
Appellant’s Medical History
In 2009, Appellant injured his back at work, and over
the next year, the pain worsened, progressing into both of his
legs. As a result, Appellant could no longer work as a
self-employed construction laborer. Beginning in 2010, several
physicians diagnosed Appellant with chronic inflammatory
demyelinating polyneuropathy (“CIDP”) and diabetes. Appellant
applied for disability insurance benefits and supplemental
2
security income in March 2011, alleging that the diabetes and
CIDP had left him disabled since August 2009.
In 2011, Appellant sought the care of Dr. Rob
Armstrong, a neurologist. During a visit to Dr. Armstrong in
November 2011, Dr. Armstrong described Appellant’s neuropathy as
“severe,” and having “occur[red] in a persistent pattern.”
A.R. 329. 1 In March 2012, Dr. Armstrong opined that Appellant’s
neuropathy caused general fatigue, leg weakness, imbalance,
pain, “clear gait difficulties,” and sensory deficits, which
significantly limited Appellant’s physical capabilities. Id. at
339-41.
Dr. Armstrong determined that Appellant had both
exertional and non-exertional limitations. Specifically, he
determined that Appellant could lift 20 pounds occasionally and
lift less than ten pounds frequently. Dr. Armstrong further
determined that Appellant could stand for a total of one to two
hours during an eight-hour work day, but only five to ten
minutes at a time, and he could sit for a total of four to five
hours, but only 15 to 30 minutes at a time. Per Dr. Armstrong,
Appellant could never perform climbing, balancing, or crouching
and could only occasionally stoop, kneel, and crawl, and
1Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.
3
Appellant’s neuropathy also affected his ability to reach,
handle, feel, push, and pull. As a result, Dr. Armstrong
recommended Appellant avoid heights, moving machinery,
temperature extremes, humidity, vibration, and any repetitive
activity. He noted that these limitations were normal
consequences of neuropathy and described the neuropathy as a
“lifelong issue” that would create hardships on Appellant’s
employment, including causing Appellant to be absent from work
“more than four times a month.” A.R. 341.
2.
ALJ Hearing
The Social Security Administration denied Appellant’s
initial application for disability benefits in June 2011 and his
request for reconsideration in September 2011. Appellant then
filed a written request for an ALJ hearing. On April 20, 2012,
at his hearing, Appellant testified that he was experiencing
extensive pain causing him to move very slowly, to have
difficulty climbing stairs, and to use a cane to walk.
A vocational expert (“VE”) testified that a
hypothetical individual with similar limitations to Appellant’s
could not perform any of Appellant’s past relevant work. Next,
the ALJ asked the VE to consider the work prospects for a
hypothetical individual with the exertional limitations
4
described by Dr. Armstrong. The VE testified that this
hypothetical individual would be unemployed.
B.
1.
Evaluation of Disability Claims
Disability claims are considered by using a five-step
process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
five steps are evaluated in sequential order, and each is
potentially dispositive -- thus, if a determination of
disability can be made at any step, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step process
entails evaluating whether the claimant: (1) worked during the
alleged period of disability; (2) had a severe impairment;
(3) had an impairment that met or equaled the requirements of a
listed impairment; 2 (4) could return to his past relevant work;
and (5) could perform any other work in the national economy if
he cannot return to his past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). If a claimant reaches step
2
The listing of impairments “describes for each of the
major body systems impairments that [are] consider[ed] to be
severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 404.1525(a); see also 20 C.F.R.
Pt. 404, Subpt. P, App. 1 (Appendix describing the listing of
impairments).
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three and has an impairment that meets or equals a listed
impairment, the claimant will be automatically found disabled
and entitled to benefits. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). Otherwise, before proceeding to step four, the
claimant’s residual functional capacity (“RFC”) must be
determined, which will then be used at steps four and five. 3 See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden of proof
is on the claimant in the first four steps, but shifts to the
Commissioner at the fifth, and final, step. See Mascio v.
Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
2.
ALJ’s Decision
The ALJ first determined that Appellant’s CIDP and
diabetes diagnoses qualified as severe impairments, but
thereafter concluded that these impairments were not severe
enough to warrant finding Appellant disabled pursuant to 20
C.F.R. Part 404, Subpart P, Appendix 1. In assessing
Dr. Armstrong’s treatment of Appellant, the ALJ summarized some,
but not all, of Dr. Armstrong’s medical notes. The ALJ then
stated,
3A claimant’s residual functional capacity is the “most
[the claimant] can still do [in a work setting] despite” the
claimant’s physical and mental limitations. 20 C.F.R.
§ 404.1545.
6
Dr. Armstrong’s opinion regarding
[Appellant’s] non-exertional limitations is
given some weight because it is supported by
medical signs and finding[s], because it is
consistent with the medical evidence of
record and because it was rendered by a
treating source. However, less weight is
given to the exertional and manipulative
limitations because they are not
well[-]supported by the medical record.
A.R. 22.
Ultimately, after considering Appellant’s age,
education, work experience, and RFC, the ALJ concluded that
Appellant was “not disabled” because other jobs existed in the
national economy in which Appellant was capable of working.
A.R. 23. Appellant appealed to the Appeals Council of the
Social Security Administration’s Office of Disability
Adjudication and Review (“Appeals Council”). The Appeals
Council denied Appellant’s appeal because it “found no reason
under [its] rules to review the [ALJ]’s decision.” Id. at 1.
3.
District Court’s Decision
Appellant then filed a complaint in the district
court. Appellant alleged that the ALJ (1) insufficiently
explained the finding that Appellant’s CIDP did not meet or
equal the requirement of a listed impairment, i.e. Listing 11.14
for peripheral neuropathy, in violation of Radford v. Colvin,
734 F.3d 288 (4th Cir. 2013); and (2) improperly evaluated the
7
medical opinion of Appellant’s doctor. Both Appellant and the
Commissioner of Social Security (“Commissioner” or “Appellee”)
moved for summary judgment. The magistrate judge recommended
affirming the ALJ’s opinion on the basis that the ALJ provided
sufficient reasoning to allow for meaningful judicial review,
and substantial evidence existed to support the ALJ’s findings.
The district court adopted the magistrate judge’s recommendation
and granted Appellee summary judgment. Appellant timely
appealed to this court.
II.
We review a district court’s grant of summary judgment
de novo. Elderberry of Weber City, LLC v. Living Centers-Se.,
Inc., 794 F.3d 406, 411 (4th Cir. 2015). We “will affirm the
Social Security Administration’s disability determination when
an ALJ has applied correct legal standards and the ALJ’s factual
findings are supported by substantial evidence.” Mascio v.
Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (internal quotation
marks omitted); 42 U.S.C. § 405(g) (The Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive.”). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Gestamp S. Carolina, L.L.C. v. NLRB, 769 F.3d 254,
263 (4th Cir. 2014) (internal quotation marks omitted). “It
consists of more than a mere scintilla of evidence but may be
8
less than a preponderance.” Hancock v. Astrue, 667 F.3d 470,
472 (4th Cir. 2012) (internal quotation marks omitted).
III.
A.
Here, Appellant relies on our decision in Radford v.
Colvin, wherein the ALJ denied a claimant’s application for
benefits because the claimant did not have qualified
impairments. See 734 F.3d 288, 291-92 (4th Cir. 2013). There,
the ALJ simply concluded at step three that he “considered, in
particular,” the impairment listings. Id. at 292. The district
court reversed the ALJ’s decision after reviewing the record
because the “ALJ’s opinion failed to apply the requirements of
the listings to the medical record,” and then the district court
proceeded to award benefits to the claimant. Id.
On appeal, we explained, “[a] necessary predicate to
engaging in substantial evidence review is a record of the basis
for the ALJ’s ruling. The record should include a discussion of
which evidence the ALJ found credible and why, and specific
application of the pertinent legal requirements to the record
evidence.” Radford, 734 F.3d at 295 (citations omitted); Arnold
v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 260 (4th Cir.
1977) (ALJ failed to include an adequate discussion “in what
amount[ed] to no more than a bare recital that [the ALJ]
considered the evidence.”). We reasoned that it is best for us
9
to “remand to the agency for additional investigation or
explanation” when we cannot evaluate the record of the basis
that underlies the ALJ’s ruling. Radford, 734 F.3d at 295
(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)); see also Mascio v. Colvin, 780 F.3d 632, 640 (4th Cir.
2015) (“ALJ’s lack of explanation requires remand” when the “ALJ
explain[ed] how he decided [the evidence] . . . [with a] vague
(and circular) boilerplate statement.”). In vacating the
district court’s decision, we emphasized that it was “not our
province -- nor the province of the district court -- to engage
in these [fact-finding] exercises in the first instance.”
Radford, 734 F.3d at 296; see also Cook v. Heckler, 783 F.2d
1168, 1173 (4th Cir. 1986) (holding that without an explanation
from the ALJ, “it is simply impossible to tell whether there was
substantial evidence to support the determination”).
B.
We now turn to the ALJ’s finding here and its
application of the particular listing. At step three, the ALJ
stated, in its entirety,
Although the claimant has “severe”
impairments, they do not meet the criteria
of any listed impairments described in
Appendix 1 of the Regulations (20 CFR,
Subpart P, Appendix 1). No treating or
examining physician has mentioned findings
equivalent in severity to the criteria of
any listed impairment, nor does the evidence
show medical findings that are the same or
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equivalent to those of any listed impairment
of the Listing of Impairments. In reaching
this conclusion, the undersigned has
considered, in particular, sections
9.00(B)(5) and 11.14.
A.R. 20. In short, the ALJ did not apply findings to the
disability listing. Rather, the ALJ engaged in the same
conclusory analysis that we found to be unacceptable in Radford.
As in Radford, where the ALJ stated that he had “reach[ed] this
conclusion” after he “considered, in particular,” the listings,
in this case, the ALJ’s analysis was likewise perfunctory and
offered nothing to reveal why he was making his decision. Nor
was there any “specific application of the pertinent legal
requirements to the record evidence.” Radford, 734 F.3d at 295.
As a result, the ALJ’s findings lack the “necessary predicate”
for us to engage in review. Id.
The Commissioner posits that substantial evidence
exists to affirm the ALJ’s findings; therefore, the error is
harmless. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.
1994) (concluding that “there is no question but that [the ALJ]
would have reached the same result notwithstanding” the error).
Thus, the Commissioner invites us to review the record and cure
the ALJ’s deficiency ourselves. See Appellee’s Br. 22
(explaining that the relatively sparse record here “does not
present a materially ambivalent body of evidence that would
prevent meaningful review”). This argument is unavailing and
11
contrary to our established precedent in Radford. We cannot
begin to engage in a “meaningful review” when there is nothing
on which to base a review.
The magistrate judge recognized the ALJ’s failure to
provide sufficient reasoning, yet he still engaged in a
fact-finding expedition. He stated the “ALJ could have
addressed Listing 11.14 in a more specific manner and made this
Court’s review easier.” Fox v. Colvin, No. 1:13-cv-00244, 2014
WL 4987135, at *3 (W.D.N.C. Sept. 8, 2014), adopted by No.
1:13-cv-00244, 2014 WL 4987206 (W.D.N.C. Oct. 7, 2014). In
turn, the district court concurred because the magistrate judge
“was able to engage in a substantive, meaningful review of the
final decision of the Commission despite the ALJ’s error.” Fox
v. Colvin, No. 1:13-cv-00244, 2014 WL 4987206, at *3 n.1
(W.D.N.C. Oct. 7, 2014). Despite both courts’ recognition of
the ALJ’s error, they engaged in an analysis that the ALJ should
have done in the first instance. To do so was in error.
Our circuit precedent makes clear that it is not our
role to speculate as to how the ALJ applied the law to its
findings or to hypothesize the ALJ’s justifications that would
perhaps find support in the record.
Inconsistent evidence abounds, and yet the ALJ “leaves
us to wonder” in such a way that we cannot conduct “meaningful
review.” Mascio, 780 F.3d at 638; see also Radford, 734 F.3d at
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296. Dr. Armstrong states numerous times Appellant’s severe
limitations: Appellant had (1) walking difficulty; (2) a
broad-based gait; (3) absent reflexes in his lower legs;
(4) diminished feeling in his legs; and (5) limited
coordination, among others. Nonetheless, the ALJ makes no
mention of how he discredited these diagnoses (or levelled them
with his findings) to conclude “the medical signs show only mild
to moderate limitations in his legs.” A.R. 21. Because the
ALJ’s opinion fails to provide any explanation connecting his
determination to that of Appellant’s failure to meet the listing
impairment, the ALJ’s analysis was insufficient. See, e.g.,
Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987) (“[I]t is
simply unacceptable for the ALJ to adopt one diagnosis over
another without addressing the underlying conflict.”); Smith v.
Heckler, 782 F.2d 1176, 1181 (4th Cir. 1986) (explaining that
the ALJ needs to filter through the evidence and explain “why”
the ALJ made the decision); Hammond v. Heckler, 765 F.2d 424,
426 (4th Cir. 1985) (per curiam) (stating that an ALJ has a
“duty of explanation” of what informed his decision).
Accordingly, we must vacate and remand.
C.
Appellant also contends that the ALJ failed to accord
adequate weight to Dr. Armstrong’s opinion. “Courts typically
accord greater weight to the testimony of a treating physician
13
because the treating physician has necessarily examined the
applicant and has a treatment relationship with the applicant.”
Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006) (internal
quotation marks omitted). Thus, “a treating physician’s opinion
on the nature and severity of the claimed impairment is entitled
to controlling weight if it is well supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the
record.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001);
see also 20 C.F.R. § 404.1527(c)(2). “By negative implication,
if a physician’s opinion is not supported by clinical evidence
or if it is inconsistent with other substantial evidence, it
should be accorded significantly less weight.” Craig v. Chater,
76 F.3d 585, 590 (4th Cir. 1996).
When denying an application,
[T]he notice of the determination or
decision must contain specific reasons for
the weight given to the treating source’s
medical opinion, supported by the evidence
in the case record, and must be sufficiently
specific to make clear to any subsequent
reviewers the weight the adjudicator gave to
the treating source’s medical opinion and
the reasons for that weight.
SSR 96-2p, 61 Fed. Reg. 34,490, 34,492 (July 2, 1996). Because
the ALJ failed to give “good reasons . . . for the weight [he]
g[a]ve [Appellant’s] treating source’s opinion” and did not
provide any support as to why he was giving the physician less
14
weight in certain areas, the ALJ’s analysis was insufficient and
merits vacating the judgment. 20 C.F.R. § 404.1527(c)(2).
Here, the ALJ provided “less weight” to
Dr. Armstrong’s opinion of Appellant’s exertional and
manipulative limitations because the ALJ believed these
limitations were “not well[-]supported by the medical record.”
A.R. 22. Such a cursory and conclusory analysis does not
provide any reason, let alone a “good reason[],” why the ALJ
concluded that Dr. Armstrong’s opinion was inconsistent with
other medical findings. 20 C.F.R. § 404.1527(c)(2); see also
SSR 96-2p, 61 Fed. Reg. at 34,492. Once more, we are confronted
with whether we can give meaningful review to the ALJ’s
decision. See Radford, 734 F.3d at 296. Yet again, we cannot.
Accordingly, summary judgment for the Appellee cannot stand.
IV.
For the foregoing reasons, we vacate the district
court’s judgment and remand the case with instructions to remand
the case to the agency for further proceedings consistent with
this opinion.
VACATED AND REMANDED
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