Elizabeth Langston v. Commissioner of Social Security Administration

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 3, 2023
• Docket: 22-1257
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1257

ELIZABETH LANGSTON,

Plaintiff - Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Kaymani Daniels West, Magistrate Judge. (5:20-cv-03334-KDW)

Submitted: January 20, 2023 Decided: February 3, 2023

Before NIEMEYER and WYNN, Circuit Judges, and MOTZ, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: W. Daniel Mayes, SMITH, MASSEY, BRODIE, GUYNN & MAYES, Aiken, South Carolina, for Appellant. Brian C. O’Donnell, Regional Chief Counsel, Victor Pane, Supervisory Attorney, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Corey F. Ellis, United States Attorney, Timothy P. Reiley, Special Assistant Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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PER CURIAM:

Elizabeth Langston appeals the district court’s order 1 upholding the

Commissioner’s denial of Langston’s applications for disability insurance benefits and

supplemental security income. On appeal, Langston argues that the Administrative Law

Judge (“ALJ”) erred by giving little weight to the opinion of Langston’s treating physician

and by discounting Langston’s subjective complaints of pain. Because we agree that the

ALJ did not correctly consider Langston’s subjective symptoms, 2 we vacate the district

court’s judgment and direct the court to remand the case to the agency for further

proceedings consistent with this opinion.

We review de novo the district court’s decision to grant summary judgment.

Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). We will affirm if the “ALJ has

applied correct legal standards and the ALJ’s factual findings are supported by substantial

1 The parties consented to the jurisdiction of the magistrate judge. 2 Langston also alleges that the ALJ erred by failing to consider her abdominal pain when constructing her residual functional capacity (“RFC”). Because this claim (and certain other sub-claims argued in Langston’s briefs) rest in part on the ALJ’s determination of the credibility of Langston’s subjective complaints, we do not separately address them. Further, Langston argues on appeal that the ALJ erred by failing to assess Langston’s other conditions (such as diverticulitis and chronic pain syndrome) at step two of the evaluation process, which she contends also impacted her RFC. However, as the Commissioner notes, Langston raises the step-two claim for the first time on appeal. Langston referred to these conditions before the district court only in the context of discussing her RFC. Accordingly, Langston has forfeited consideration of her step-two claim. See, e.g., United States v. Turner Constr. Co., 946 F.3d 201, 208 (4th Cir. 2019). And because we remand for further consideration of her RFC on other grounds, we do not consider her argument that the ALJ failed to properly consider these conditions in the RFC analysis.

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evidence.” Monroe v. Colvin, 826 F.3d 176, 186 (4th Cir. 2016) (internal quotation marks

omitted). “Substantial evidence is that which a reasonable mind might accept as adequate

to support a conclusion. It consists of more than a mere scintilla of evidence but may be

less than a preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citation

and internal quotation marks omitted). We do not “reweigh conflicting evidence, make

credibility determinations, or substitute our judgment for that of the ALJ”; rather, “[w]here

conflicting evidence allows reasonable minds to differ,” we defer to the Commissioner’s

decision. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (brackets and internal

quotation marks omitted).

In making a disability determination, the ALJ employs a five-step process,

inquiring:

[A]t step one[,] whether the claimant has been working; at step two, whether the claimant’s medical impairments meet the regulations’ severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the regulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.

Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). If, at step three, the ALJ finds that

the claimant’s impairments match one of the regulations’ listed impairments, then the

claimant is deemed disabled and the analysis ends. Otherwise, the ALJ must determine the

claimant’s RFC before proceeding to steps four and five. Id. at 635. In determining the

RFC, the ALJ “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.” Id. at 636 (internal quotation marks omitted). Among

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the listed functions are “physical abilities, such as sitting, standing, walking, lifting,

carrying, pushing, pulling, or other physical functions (including manipulative or postural

functions, such as reaching, handling, stooping or crouching).” Id. at 636 n.5 (internal

Langston first contends that the ALJ failed to properly consider the opinion of

Douglas Swartz, her treating physician, and improperly gave his opinion little weight.

Swartz opined that Langston was extremely limited in nearly all physical activities due to

her spondylosis and chronic gastrointestinal issues. Swartz’s opinion was a checklist form

and contained no analysis; in addition, Langston’s back and abdominal pain were not

discussed, creating confusion as to whether Langston’s limitations were due to strictly

functional, physical issues or pain or both.

The treating physician rule requires that ALJs give “controlling weight” to a treating

physician’s opinion on the nature and severity of the claimant’s impairment if that opinion

is (1) “well-supported by medically acceptable clinical and laboratory diagnostic

techniques” and (2) “not inconsistent with the other substantial evidence” in the record. 20

C.F.R. § 404.1527(c)(2). 3 “[T]he opinion of a claimant’s treating physician [must] be

given great weight and may be disregarded only if there is persuasive contradictory

evidence.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

This regulation has been amended, but the original version is still applicable to 3

Langston’s claim because it was filed prior to March 27, 2017. See 20 C.F.R. § 404.1527.

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Here, the ALJ gave Swartz’s checklist opinion little weight, reasoning that (1) on

the same day Swartz signed his opinion, Langston had an unremarkable physical

examination in the emergency room, aside from mild to moderate abdominal tenderness;

(2) Swartz relied on Langston’s difficult recoveries from surgery, without noting that her

condition improved after recovery; (3) Langston’s weight was stable and her bowel sounds

were consistently normal; (4) Swartz is a family physician, not a gastroenterologist or

orthopedist; and (5) Swartz’s conclusion that Langston’s back condition was disabling

contradicted his own treatment notes from the very next day, when he recorded that

Langston had normal motor strength. Because Swartz’s brief opinion is contradicted by

his own almost-contemporaneous treatment notes as well as examinations by other more

specialized physicians, the ALJ did not err in giving Swartz’s opinion little weight. See

Wood v. Comm’r of Soc. Sec. Admin., No. 21-1905, 2022 WL 997306, at *3 (4th Cir. Apr.

4, 2022) (“Notably, the ALJ gave more weight to [the providers’] contemporaneous

observations and conclusions than to [their] disability forms, which contained certain

conclusory questions and various check-box responses. This was entirely appropriate.”

(citing Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (“[A] conclusory checkbox

form has little evidentiary value when it cites no medical evidence, and provides little to

no elaboration.” (internal quotation marks omitted)))).

Langston next argues that the ALJ improperly considered her subjective complaints

of pain and her corresponding limitations. The regulations prescribe “a two-step analysis

when considering a claimant’s subjective statements about impairments and symptoms.”

Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017); see 20 C.F.R. § 404.1529(b)–(c).

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The ALJ first “looks for objective medical evidence showing a condition that could

reasonably produce the alleged symptoms.” Lewis, 858 F.3d at 866. If (as here) the

claimant has such a condition or impairment, then the ALJ must “evaluate the intensity,

persistence, and limiting effects of the claimant’s symptoms to determine the extent to

which they limit the claimant’s ability to perform basic work activities.” Id. The second

step “requires the ALJ to assess the credibility of the claimant’s statements about symptoms

and their functional effects.” Id. But the ALJ may not reject a claimant’s statements about

the intensity or persistence of her pain or its effect on her ability to work solely because

the medical evidence does not substantiate the claimant’s statements. Id. (citing 20 C.F.R.

§ 404.1529(c)(2)). Instead, if the objective medical evidence does not support the

claimant’s statements, the ALJ must “examine the entire case record” when considering

the “intensity, persistence, and limiting effects” of the symptoms. SSR 16-3p, 2017 WL

5180304, at *4 (Oct. 25, 2017). Doing so requires the ALJ to “build an accurate and logical

bridge from the evidence to his conclusion.” Brown v. Comm’r Soc. Sec. Admin., 873 F.3d

251, 269 (4th Cir. 2017).

Here, the ALJ reviewed Langston’s hearing testimony and found that her assertions

about the intensity, persistence, and limiting effects of her symptoms were not entirely

consistent with the medical and other evidence of record. In support, the ALJ noted that,

despite Langston’s complaints of nausea and stomach pain, her weight had actually

increased. The ALJ also relied upon Langston’s reports of her daily activities which

included the ability to “tend to her personal hygiene, cook, wash dishes, dust, wash laundry,

take care of her grandchildren, get her grandchildren to school, drive, take her medications

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independently, shop for groceries, handle her finances, read, visit with her family, and

watch television, activities, which generally reveal functioning at a greater level than

alleged.” J.A. 26. 4 The ALJ termed her daily activities as “representative of a fairly active

lifestyle and . . . not indicative of a significant restriction of activities or constriction of

interests.” J.A. 26. In addition, the ALJ noted that doctors had not been able to find a

physical reason for her abdominal pain, but that it might be caused by long-term opiate use

and abdominal adhesions. J.A. 29. Regarding Langston’s back pain, the ALJ concluded

that, while some mechanical back pain was supported by the objective medical evidence,

Langston’s “rather extreme complaints” were not. J.A. 29. Finally, the ALJ gave a lengthy

recitation of Langston’s medical history, although the ALJ did not provide any analysis as

to the conclusions to be drawn therefrom.

Langston contends that the ALJ erred by disregarding her statements about her

abdominal pain because the ALJ could not find an objective medical explanation for the

intensity of her pain. We agree. See Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 96

(4th Cir. 2020) (finding that claimant is entitled to rely exclusively on subjective evidence

to show intensity and extent of pain and fatigue); Lewis, 858 F.3d at 866 (requiring

objective medical evidence to support claimant’s evidence of pain intensity improperly

increased claimant’s burden of proof). Indeed, the ALJ mentioned the lack of an official

diagnosis in the same paragraph in which he noted that the RFC was supported by the

evidence of record. To be sure, the ALJ did not explicitly state that the lack of “cause for

4 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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abdominal pain” was a primary reason to disregard Langston’s complaints. However, the

placement of this sentence implies that it was strongly related to the ALJ’s consideration

of Langston’s functional capacity. 5 That was error.

Moreover, the ALJ erred by discrediting Langston’s assertions of disabling pain

based largely on her ability to perform daily activities. An ALJ must “build an accurate

and logical bridge” from the evidence to his credibility determination. Brown, 873 F.3d at

269. But in this case, the ALJ failed to explain how Langston’s ability to perform modest

housework (such as cleaning, laundry, and cooking simple meals, with many breaks), drive

(not daily), and enjoy physically undemanding, sedentary hobbies (watching television)

undermined her assertions about her pain. See id. at 269–70 (finding ALJ who noted

claimant’s various activities erred by not acknowledging limited extent of activities or

explaining how they showed claimant could sustain full-time job). In addition, the ALJ

improperly relied upon Langston’s daily activities without also considering her qualifying

statements that her ability to participate in these activities had lessened over time and that,

even back in 2014, she proffered that she could only perform the activities intermittently

and with breaks and rest due to pain and fatigue. See Arakas, 983 F.3d at 99 (holding that

ALJ must consider the extent to which claimant can perform different types of activities).

Given Langston’s testimony that nearly all activities were intermittent and required

5 Moreover, Langston had been prescribed strong narcotics, including morphine, for nearly a decade to address her pain, which is objective medical evidence supporting her complaints of extreme pain, even if the cause was unknown.

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numerous breaks, we conclude that substantial evidence does not support the ALJ’s

conclusion that Langston’s daily activities were inconsistent with her subjective complaints

of pain. Moreover, the ALJ did not explain how Langston’s limited activities demonstrated

an ability to persist through an eight-hour workday, five days a week. See id. at 100–01

(noting that the ability to perform household chores, drive, shop, walk for exercise, cook,

and do yard work did not constitute substantial evidence of the ability to work full time in

light of the applicant’s testimony as to her limitations in conducting those activities).

The only other bases provided by the ALJ for rejecting Langston’s testimony

regarding her debilitating pain were the increase in her weight, the fact that some of her

symptoms might be caused by opiate use, and the fact that the medical records did not

mention that Langston used a cane. 6 While increased weight and contradictory evidence

about cane use could support rejecting Langston’s testimony about the extent of her

abdominal and back pain, absent any analysis by the ALJ, these factors are insufficient to

overcome her ongoing complaints of pain, the prescription of strong pain medication, and

her testimony as to her ability to complete daily tasks. Regarding Langston’s use of

narcotics, the ALJ did not provide any discussion as to whether stopping their use would

increase her pain, even if it decreased her GI symptoms. Moreover, if the ALJ believed

that Langston’s GI symptoms were caused by narcotics, it is unclear why the ALJ partially

discounted her complaints of GI issues.

6 Langston testified in 2019 that she used a cane.

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Because the ALJ’s determination that Langston’s daily activities were inconsistent

with her complaints of disabling pain was not supported by substantial evidence and

because the ALJ erred in considering the lack of objective evidence as a primary reason

for rejecting Langston’s subjective complaints, we vacate the district court’s judgment and

remand with instructions to remand the case to the agency for further proceedings

consistent with this opinion. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

VACATED AND REMANDED