Charles Harris v. Kilolo Kijakazi ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1853
CHARLES PATRICK HARRIS,
Plaintiff - Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. David Shepardson Cayer, Magistrate Judge. (1:20-cv-00129-DSC)
Submitted: May 31, 2022 Decided: July 28, 2022
Before GREGORY, Chief Judge, and KING and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Christopher S. Stepp, THE STEPP LAW FIRM, Hendersonville, North
Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina; David N. Mervis, Special Assistant
United States Attorney, Office of General Counsel, SOCIAL SECURITY
ADMINISTRATION, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Charles Patrick Harris appeals the Social Security Administration’s (SSA) denial of
his application for disability insurance benefits and supplemental security income. On
appeal, he challenges various rulings by the Administrative Law Judge (“ALJ”). We
affirm.
First, Harris asserts that the ALJ erred in determining his residual functional
capacity (“RFC”). The 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).” Mascio v. Colvin,
780 F.3d 632, 636 (4th Cir. 2015) (internal quotation marks omitted). “In other words, the
ALJ must both identify evidence that supports [her] conclusion and build an accurate and
logical bridge from that evidence to [her] conclusion.” Woods v. Berryhill, 888 F.3d 686,
694 (4th Cir. 2018) (brackets and internal quotation marks omitted); see Thomas v.
Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (“[A] proper RFC analysis has three
components: (1) evidence, (2) logical explanation, and (3) conclusion.”). However, failure
to strictly comply with these requirements does not automatically necessitate remand.
Mascio, 780 F.3d at 636. Rather, the driving consideration is whether the ALJ’s analysis
allows for meaningful judicial review. Id.
Here, Harris contends that the ALJ improperly used the following conclusory,
“boilerplate” language:
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant’s statements concerning the
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intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record.
(A.R. 26). We review the ALJ’s assessment of a claimant’s credibility to ensure that it is
supported by substantial evidence. See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir.
2005). Moreover, “[w]hen factual findings rest upon credibility determinations, they
should be accepted by the reviewing court absent ‘exceptional circumstances.’” Edelco,
Inc. v. NLRB, 132 F.3d 1007, 1011 (4th Cir. 1997) (internal citations omitted). Under a
substantial evidence standard of review, an administrative fact-finder’s determinations on
issue of credibility should be virtually unreviewable on appeal. Pope v. U.S. Postal
Service, 114 F.3d 1144, 1149 (Fed. Cir. 1997).
We conclude that the ALJ appropriately found that Harris’s reports of limitations
were not supported by the record and that the ALJ properly documented the evidence and
analysis relied upon in reaching that conclusion and in determining Harris’s RFC.
Specifically, the ALJ noted that Harris “rarely required medication refills for pain” and that
he “treated many of his conditions historically with limited ongoing intervention outside
of the general medication maintenance.” (A.R. 26-27). The ALJ stated that, while Harris
was treated for various conditions, the medical intervention was limited, with certain
conditions at times being asymptomatic and/or improving. The ALJ carefully considered
the medical opinion evidence and accepted those supported by objective evidence and
treatment records. Thus, while the ALJ might have included some “boilerplate” language,
she followed this language with a detailed review of the evidence and specific findings.
Contrary to Harris’s general assertion, the ALJ cited specific contradictory testimony and
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evidence in analyzing Harris’s credibility. Further, the ALJ appropriately identified the
evidence supporting her conclusions and drew logical connections between the evidence
and the RFC. Accordingly, we uphold the ALJ’s credibility and RFC determinations. 1
Next, Harris asserts that the ALJ and the Appeals Council failed to consider the
evidence of the deterioration of his condition. Harris does not explain his argument in any
detail, and it is unclear whether he is relying on something in the record before the ALJ or
on additional evidence submitted after the ALJ’s decision. 2 Harris’s failure to explain his
argument or support it with citations to a voluminous record renders review impossible.
Accordingly, we find that Harris has waived his argument that his additional evidence
showed deterioration of his condition. See, e.g., Grayson O Co. v. Agadir Int’l LLC, 856
F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its
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Harris briefly raises two other meritless claims when discussing his RFC. First,
he contends that the ALJ failed to consider a mental health evaluation by Donald Hinnant,
PhD; however, the ALJ explicitly analyzed Hinnant’s opinion, giving it little weight,
because Hinnant failed to include results for tests he administered, confine suggested
limitations to those based on mental health complaints, and consider Harris’s complaints
of pain in light of his limited use of medications. Next, Harris asserts that the ALJ did not
consider the vocational expert’s testimony that, if all of Harris’s purported limitations were
considered, there were no jobs that Harris could perform. Given that the ALJ did not accept
all of Harris’s testimony regarding his limitations, however, this testimony was irrelevant.
2
Harris submitted a substantial number of medical records after his hearing. Many
of these records documented Harris’s hospitalization due to an infection following surgery
on his finger, which occurred after the hearing. However, Harris does not allege that he is
still suffering consequences from either the surgery or the infection, and he does not
suggest what further limitations the medical records of his hospitalization support. While
Harris submitted certain other medical records after the hearing, stating that they
documented decreased foot sensation and chronic hand pain, he does not explain when his
conditions allegedly began to deteriorate or whether his recent symptoms are appreciably
different than they were at the hearing or at an earlier time.
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opening brief or by failing to develop [its] argument—even if [its] brief takes a passing
shot at the issue.”) (alterations in original) (citations and internal quotation marks omitted);
see also Krell v. Saul, 931 F.3d 582, 586 n.1 (7th Cir. 2019) (“Perfunctory and undeveloped
arguments are waived, as are arguments unsupported by legal authority.”) (citation
omitted).
Next, Harris argues that Donald Hinnant, PhD, was a treating physician and that,
thus, his opinion should have been given the weight required by Arakas v. Commissioner,
983 F.3d 83 (4th Cir. 2020). In social security disability cases, the “treating physician rule”
instructs claimants that “[g]enerally,” the SSA will “give more weight to medical opinions
from your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations.” 20 C.F.R.
§ 404.1527(c)(2). “[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). In Arakas, the Court held that the
“substantial support from the other objective evidence of record” is not necessary for
according controlling or great weight to a treating physician's opinion. Rather, the opinion
must be given controlling weight unless it is based on medically unacceptable clinical or
laboratory diagnostic techniques or is contradicted by the other substantial evidence in the
record. 983 F.3d at 107.
A treating source is defined as follows:
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Treating source means 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. Generally, we will
consider that you have an ongoing treatment relationship with an acceptable
medical source when the medical evidence establishes that you see, or have
seen, the source with a frequency consistent with accepted medical practice
for the type of treatment and/or evaluation required for your medical
condition(s). We may consider an acceptable medical source who has treated
or evaluated you only a few times or only after long intervals (e.g., twice a
year) to be your treating source if the nature and frequency of the treatment
or evaluation is typical for your condition(s). We will not consider an
acceptable medical source to be your treating source if your relationship with
the source is not based on your medical need for treatment or evaluation, but
solely on your need to obtain a report in support of your claim for disability.
20 C.F.R. § 404.1527(a)(2). Harris contends that Hinnant’s “evaluation . . . extended over
a long enough period of time” that Hinnant should have been considered a treating
physician. (Appellant’s Br. at 15). However, Harris does not state over what period of
time he was treated by Hinnant or what that treatment entailed.
The record contains Hinnant’s “Independent Psychological Evaluation” dated
October 16, 2016. In this evaluation, Hinnant reviewed Harris’s SSA file and drew
conclusions regarding his ability to work. Although Hinnant concluded that Harris had a
“good prognosis” for his diabetes, psychological symptoms, and pain, Hinnant did not
provide any treatment or medication. (A.R. 2325-29). Hinnant also filled out a SSA
Psychiatric Review Technique form and a SSA Mental Residual Functional Capacity
Assessment, both dated September 21, 2016, providing his opinion on Harris’s functional
limitations. Given that Harris appears to have only seen Hinnant for purposes of supporting
his claim, the ALJ did not err in failing to evaluate Hinnant’s opinion under the treating
physician rule.
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Finally, Harris raises a constitutional claim based on Selia Law LLC v. Consumer
Financial Protection Bureau, 140 S. Ct. 2183, 2204 (2020), which found that restrictions
placed on the President’s ability to remove the head of an agency were unconstitutional.
Harris asserts that the Commissioner of the SSA was subject to similar tenure protections,
and as such, he is entitled to new hearing. Harris contends that he was harmed when the
former Commissioner attempted to undermine the treating physician rule, which allegedly
resulted in Hinnant’s opinion not being properly considered. See Collins v. Yellen, 141 S.
Ct. 1761, 1787-89 (2021) (holding that, even where an unconstitutional statutory removal
restriction exists, so long as there is no defect in the method of appointment, a claimant
must show that the restriction actually caused him harm).
There are numerous defects in this argument. First, this claim was not raised below
and, thus, has been waived absent exceptional circumstances. See Hicks v. Ferreyra, 965
F.3d 302, 309–11 (4th Cir. 2020). Next, in 2019, when the ALJ issued her decision, the
SSA was headed by an Acting Commissioner, who was not subject to any statutory tenure
protection. Further, Harris’s attempt to show harm fails because, as discussed above,
Hinnant was not a treating physician, so any change in the treating physician rules was not
relevant. As such, this claim is without merit.
Based on the foregoing, we affirm the SSA’s ruling. We deny Harris’s motion for
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.
AFFIRMED
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