Stephen R. v. Martin O'Malley

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 23, 2024
• Docket: 21-2292
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2292

STEPHEN R.,

Plaintiff – Appellant,

v.

MARTIN J. O’MALLEY, Commissioner of Social Security Administration,

Defendant – Appellee.

Appeal from the United States District Court for the District of South Carolina at Aiken. Bruce H. Hendricks, District Judge. (1:19-cv-03405-BHH)

Submitted: November 9, 2023 Decided: July 23, 2024

Before WILKINSON and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: Dana W. Duncan, DUNCAN DISABILITY LAW, S.C., Nekoosa, Wisconsin, for Appellant. Brian O’Donnell, Regional Chief Counsel, Charles Kawas, Supervisory Attorney, David E. Somers, III, Special Assistant United States Attorney, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Corey F. Ellis, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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PER CURIAM:

Stephen Root appeals the district court’s order affirming the Social Security

Administration’s denial of his application for disability benefits. Root served in the Marine

Corps from 2000 to 2007, and was involved in combat in Iraq. Since his return, he has

been diagnosed with anxiety, post-traumatic stress disorder (“PTSD”), affective disorder,

personality disorder, and intermittent explosive disorder. Root stopped working in 2016

and applied for benefits in 2017, but an Administrative Law Judge (“ALJ”) denied his

application after finding that the record did not substantiate the severity of his symptoms,

and that his condition had significantly improved. For the following reasons, we vacate

and remand for a new hearing.

I.

The Social Security Administration follows a five-step process to assess whether a

claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a)(4). The first

three steps address “(1) whether the claimant is working; (2) if not, whether [he] has a

‘severe impairment’; and (3) if [he] does, whether the impairment ‘meets or equals a listed

impairment.’” Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017)

(quoting 20 C.F.R. § 404.1520). If the claimant succeeds at the third step, the inquiry ends,

and the ALJ must find that the claimant is disabled. Id.

“[I]f the claimant fails at step three, the ALJ ‘must determine the claimant’s residual

functional capacity (RFC), which is the most the claimant can still do despite physical and

mental limitations that affect [his] ability to work.’” Shinaberry v. Saul, 952 F.3d 113, 119

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(4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016)). The RFC

guides the remainder of the inquiry. At step four, the ALJ evaluates whether the claimant’s

impairments prevent him from performing “past relevant work.” Patterson, 846 F.3d

at 659 (cleaned up). “If so, the ALJ proceeds to step five, where the burden shifts to the

[agency] to prove, by a preponderance of the evidence, that the claimant can perform other

work that exists in significant numbers in the national economy, considering the claimant’s

RFC, age, education, and work experience.” Shinaberry, 952 F.3d at 119 (cleaned up).

Applying the five-step process, the ALJ first determined that Root was unemployed,

that he has been diagnosed with several severe impairments, and that those impairments do

not meet, or medically equal, impairments listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. Accordingly, the ALJ performed a residual functional capacity assessment.

Reviewing Root’s conditions, the ALJ found that the medical evidence did not support the

“intensity, persistence, and limiting effects” of Root’s symptoms, and that Root had “made

significant improvements following his voluntary inpatient treatment.” Based on this

finding, the ALJ concluded that, as relevant:

[Root] can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. He can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to reasonable and customary supervision.

Applying this RFC, the ALJ found that Root could not return to his previous positions,

including work as a marksmanship instructor and trucking dispatcher, among other roles.

Relying on a vocational expert’s testimony, the ALJ nevertheless concluded that there are

hundreds of thousands of jobs Root could perform in the national economy.

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II.

“In social security proceedings, a court of appeals applies the same standard of

review as does the district court.” Brown v. Comm’r of Soc. Sec. Admin., 873 F.3d 251,

267 (4th Cir. 2017). That is, we “must uphold the determination when an ALJ has applied

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

evidence.” Id. (cleaned up). “Substantial evidence is that which a reasonable mind might

accept as adequate to support a conclusion.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir.

2015) (cleaned up). “In reviewing for substantial evidence, we do not undertake to reweigh

conflicting evidence, make credibility determinations, or substitute our judgment for that

of the ALJ.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (cleaned up).

Root challenges several aspects of the ALJ’s decision, arguing sequentially: (1) that

the ALJ failed to address conclusions by a vocational expert; (2) that the ALJ cherrypicked

the record, disregarding relevant evidence that substantiated the severity of his symptoms;

and (3) that the ALJ did not properly analyze the medical reports. We reject the first

argument, but find the remaining two meritorious.

A.

Root first argues that the ALJ failed to explain why his RFC determination did not

account for two limitations discussed with a vocational expert. As “a necessary predicate

to engaging in substantial evidence review,” the record must include the basis for the ALJ’s

decision, requiring “a discussion of which evidence the ALJ found credible and why, and

specific application of the pertinent legal requirements to the record evidence.” Radford

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v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). “[T]he RFC ‘assessment must 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).’” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636

(4th Cir. 2015)). “To pass muster, ALJs must ‘build an accurate and logical bridge’ from

the evidence to their conclusions.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 95

(4th Cir. 2020) (quoting Monroe, 826 F.3d at 189).

Root argues that the ALJ failed to modify his RFC analysis to address a vocational

expert’s conclusion that no work exists in the national economy for an individual who

cannot tolerate reasonable supervision, and who requires isolation from his coworkers.1

But the expert rendered this opinion in response to the ALJ’s questions about a hypothetical

claimant — he did not conclude that these limitations accurately reflect Root’s symptoms.

Absent a finding that Root cannot tolerate supervision or requires isolation from coworkers,

the ALJ was not required to address how such restrictions would affect his employability.

B.

Root next argues the ALJ cherrypicked the record and ignored evidence supporting

a greater disability finding. “An ALJ has the obligation to consider all relevant medical

evidence and cannot simply cherrypick facts that support a finding of nondisability while

1 Root also argues that the ALJ failed to address his need for “occasional” absences from work. He argues that the “the term ‘occasional’” indicates he will be absent on as many as one third of his scheduled workdays. We are not persuaded. Drs. Jackson and Clanton opined that “[t]he claimant can attend work regularly, needing to miss no more than an occasional day of work due to mental illness.” That assessment does not imply the level of absenteeism Root suggests. 5 USCA4 Appeal: 21-2292 Doc: 32 Filed: 07/23/2024 Pg: 6 of 11

ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869

(4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).

The ALJ found that the record does not substantiate Root’s claims regarding the

“intensity, persistence, and limiting effects” of his conditions, and that his symptoms have

significantly improved since his hospitalization in February and March 2017. Root takes

issue with these findings, arguing that the ALJ ignored significant evidence of his

symptoms before and after his outpatient treatment. We agree.

First, the ALJ overlooked evidence of Root’s symptoms prior to his hospitalization.

The ALJ recounted that Root “functioned well for years” after his discharge from the

Marines in 2007, and attributed Root’s downturn to an extramarital affair that he began

sometime in late 2015. These conclusions overlook important evidence that Root struggled

with severe symptoms both during his service and following his discharge. For example,

Dr. Jachna reported that Root attempted suicide multiple times during his military service;

that in 2010, he “held a gun to his head [and] threatened to kill his wife and himself”; and

that in 2016, he nearly threw his girlfriend off a balcony during an explosive episode. And

Dr. Wentworth noted that Root “has been suffering with PTSD . . . for several years,”

recounted that “[h]e has made four serious, highly lethal attempts to commit suicide,” and

attributed his self-destructive behavior — including the affair — to his PTSD:

It would seem on the surface that it is [the affair] that is the cause of his downward spiral. However, it is important to view this from a different, more complete perspective. Stephen has now lost his job, his children, and his standing with family, friends, and the community. It is not unusual for a combat veteran with PTSD to believe that he does not deserve to live. After Stephen attempted suicide four times and was unsuccessful, he stated he decided to stop trying to kill himself. However, another way to exact extreme

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punishment on oneself, short of suicide, is to destroy one’s life. This is the basis of Stephen’s behavior over the last year. . . . It was a way to destroy his life, one that didn’t require his physical death.

These reports cut against the ALJ’s evaluation of Root’s symptoms, and his finding that

Root “functioned well for years” following his military service. But they do not appear

anywhere in the ALJ’s decision. In fact, the ALJ nowhere mentions that Root has made

multiple suicide attempts, or that he has entertained homicidal thoughts.

The ALJ also omitted recent reports suggesting Root’s symptoms have returned.

See Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019) (finding reversible error where

ALJ declined to discuss relevant reports by mental health specialists). In his decision, the

ALJ found “that the claimant made significant improvements following his voluntary

inpatient treatment, and there are very few visits for mental health treatment after his

discharge . . . in March of 2017.” To support this finding, the ALJ noted that Root reported

reduced symptoms in follow-up visits during May and September 2017. He also recounted

that by May 2018, Root was having no hallucinations and fewer nightmares — and that

Root had remarried, and was visiting state parks with his wife.

But Root’s medical history did not end in May 2018, and neither did the record

before the ALJ. In November 2018 and February 2019, Root saw a significant downturn

— according to medical reports, he began to experience insomnia, nightmares, increased

irritability, disturbing flashbacks, and severe depression, with a PHQ-2 I9 score of 23. He

also admitted that he was having generalized homicidal thoughts, although he was not

likely to act on them. And he informed his doctors that his medication was no longer

effectively resolving his symptoms. This medical evidence at least undermines the ALJ’s

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conclusion that Root’s inpatient treatment was a turning point. But it does not appear

anywhere in the ALJ’s decision.

In a similar vein, the ALJ’s description of Root’s testimony at his June 2019 hearing

was selective. As evidence that Root’s intermittent explosive disorder has subsided, the

ALJ recounted that Root attends Freemason meetings and Bible study; that he watches

television all day despite his concentration issues; and that he has learned breathing

techniques to manage his panic attacks. But Root also testified that his breathing

techniques are not always effective; that television shows can trigger his PTSD; that he has

stopped attending Bible study; and that he has been unable to tolerate crowded spaces for

more than “45 minutes to an hour” without feeling overwhelmed. The ALJ brushed past

these negative signs entirely, “highlighting [Root’s] good moments and bypassing the

bad.” Shelley C. v. Comm’r of Soc. Sec. Admin., 61 F.4th 341, 362 (4th Cir. 2023); see,

e.g., Arakas, 983 F.3d at 102 (“The ALJ selectively cited evidence concerning tasks which

[Arakas] was capable of performing and improperly disregarded her qualifying

statements.” (cleaned up)).

To be sure, “there is no rigid requirement that the ALJ specifically refer to every

piece of evidence in his decision.” Reid v. Comm’r of Soc. Sec. Admin., 769 F.3d 861, 865

(4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)). And,

of course, we may not “reweigh conflicting evidence, make credibility determinations, or

substitute our judgment for that of the ALJ.” Hancock, 667 F.3d at 472 (cleaned up). But

when the ALJ’s decision suggests that he selectively examined the record and ignored

countervailing evidence, Lewis, 858 F.3d at 869, or that he mischaracterized the facts to

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buttress his conclusions, Arakas, 983 F.3d at 102, that decision is not supported by

substantial evidence.

We conclude that the ALJ’s analysis of the record in this case was impermissibly

selective. The ALJ concluded that Root “functioned well for years” after his discharge —

without mentioning his violent tendencies and “highly lethal attempts to commit suicide”

both during and after his military service. The ALJ also found that Root’s conditions

improved “significantly” following his hospitalization — without acknowledging more

recent reports suggesting that Root’s medication is ineffective, and his symptoms may have

returned. We express no opinion as to how the ALJ must weigh this evidence on remand.

But as these significant omissions affect the ALJ’s evaluation of the “intensity, persistence,

and limiting effects” of Root’s symptoms, the ALJ’s assessment of Root’s RFC is not

supported by substantial evidence.

C.

Third, Root argues that the ALJ did not correctly evaluate several medical reports.

We agree, and we briefly note two deficiencies in the ALJ’s analysis of the medical

evidence on the record.

First, the ALJ did not correctly apply 20 C.F.R. § 404.1520c to reports by state

psychologists Drs. Jackson and Clanton, which informed his evaluation of Root’s RFC.

That regulation requires an ALJ to “explain how [he] considered the supportability and

consistency factors for a medical source’s medical opinions.” 20 C.F.R. § 404.1520c(b)(2).

Although the ALJ invoked these factors, his analysis was threadbare and lacked citations.

He merely noted that “[t]hese doctors’ opinions were grounded in the evidence contained

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in the record at the time,” and that they “are consistent with and supported by other medical

evidence in the file and the entire record as a whole.” Nowhere did he reference or describe

to what evidence he was referring. “Put simply, the ALJ’s lack of explanation requires

remand.” Patterson, 846 F.3d at 663 (cleaned up).

Second, the ALJ provided invalid reasons for discounting the medical reports of

Drs. Wentworth, McCann, and Fitzsimmons. His most pertinent reason for doing so was

that “there was evidence of significant improvement following the claimant’s inpatient

treatment, and the level of severity endorsed by these providers is not supported by the

longitudinal evidence of record.” As discussed above, that conclusion is not supported by

substantial evidence. But the ALJ also noted (1) that these reports were procured as part

of Root’s earlier applications for Veterans Affairs and Postal Service disability benefits;

and (2) that they failed to provide a function-by-function evaluation of Root’s abilities and

limitations. Neither is a valid reason to discredit these reports. An ALJ must “consider all

of the supporting evidence underlying” a decision from another government agency,

20 C.F.R. § 404.1504, and while medical opinions must provide an assessment of the

claimant’s limitations and capacities, 20 C.F.R. § 404.1513(a)(2), nothing in the applicable

regulations requires medical sources to conduct that assessment on a function-by-function

basis. 2

We also note that the ALJ presented his RFC before making a finding as to Root’s 2

mental and physical limitations. See Thomas, 916 F.3d at 312 (“Stating a claimant’s RFC before conducting a function-by-function analysis is an error — even though, on its own, it does not necessarily require remand.”). The ALJ made several relevant findings at the third step of his analysis, where he assessed the severity of Root’s mental impairments (Continued) 10 USCA4 Appeal: 21-2292 Doc: 32 Filed: 07/23/2024 Pg: 11 of 11

III.

Because the ALJ analyzed the record selectively, and failed to evaluate essential

medical opinions consistent with 20 C.F.R. § 404.1520c, the ALJ’s decision is not

supported by substantial evidence. Pursuant to 42 U.S.C. § 405(g), we vacate and remand

for a rehearing on Root’s application. 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

under the “paragraph B criteria.” But as the ALJ himself acknowledged, “[t]he mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment.” On remand, the ALJ is directed to conduct such an assessment prior to any RFC finding.