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Appeal: 13-1703 Doc: 13 Filed: 07/11/2013 Pg: 1 of 37

__________________

No. 13-1703

___________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA McKINNEY,

Appellant,
v.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Appellee.

Appeal from the United States District Court
for the Western District of North Carolina

APPELLANT’S INITIAL BRIEF

SARAH H. BOHR
Bohr & Harrington, LLC
2337 Seminole Road
Atlantic Beach, Florida 32233
Telephone: (904) 246-7603
Facsimile: (904) 246-8884
e-mail: [email protected]
Florida Bar Number: 264008
PAUL TOWNSEND McCHESNEY
McChesney & McChesney, PC
188 Alabama Street
Spartanburg, South Carolina 29302
Telephone: (864) 582-7882
Facsimile: (864) 583-3506
E-mail: [email protected]

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DISCLOSURE OF CORPORATE AFFILIATIONS

AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST

IN THE LITIGATION

The following entities have a direct financial interest in the outcome of this
litigation:
1.
2.
3.

Carolyn W. Colvin, Commissioner of Social Security;
Sarah H. Bohr, Counsel for Appellant;
Mathew John Del Mastro, Assistant Regional Counsel, Social Security
Administration, Counsel for Appellee;
The Honorable Dennis Howell, United States Magistrate Judge;
Jennifer L. Little, Counsel for Appellant;
Paul Townsend McChesney, Counsel for Appellant;
Lisa McKinney, Appellant; and
The Honorable Martin Reidinger, United States District Judge.

4.
5.
6.
7.
8.

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TABLE OF CONTENTS

C.

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Course of Proceedings and Dispositions Below. . . . . . . . . . . . . . . . . 2
B.
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Plaintiff’s age, education and past work experience .. . . . . . . . 4
2. Relevant medical evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.
Summary of testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I.

THE ALJ COMMITTED REVERSIBLE ERROR BY FAILING
TO EVALUATE, OR EVEN ADDRESS, MS. McKINNEY’S
OBESITY AND HALLUX LIMITUS DEFORMITY.. . . . . . . . . . . . . . . . 15
A.
Obesity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B.
Hallux Limitus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
THE ALJ FAILED TO COMPLY WITH APPLICABLE
LEGAL STANDARDS IN REJECTING THE OPINIONS OF
DR. SMOKER, MS. McKINNEY’S TREATING PHYSICIAN. . . . . . . . . 21

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

II.



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TABLE OF AUTHORITIES

CASES
Acevedo ex rel. A.A. v. Astrue, No. ED CV 09-637-PLA, 2010 WL 1994661

(C.D. Cal. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004)... . . . . . . . . . . . . . . . . . . . . . . . 21
Coffman v. Bowen, 829 F.2d 514 (4th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . 23
Cogdell v. Astrue, No. 8:10-105, 2010 WL 6243317

(D.S.C. Dec. 20, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
DeLoatche v. Heckler, 715 F.2d 148 (4th Cir. 1983).. . . . . . . . . . . . . . . . . . . . 23-24
Dominguese v. Massanari, 172 F. Supp.2d 1087 (E. D. Wis. 2001). . . . . . . . . . . 29
Hines v. Barnhart, 453 F.3d 559 (4th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . 14, 22

Hines v. Bowen, 872 F.2d 56 (4th Cir. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 13, 24
Martinez v. Astrue, 630 F.3d 693 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 16
McLeod v. Astrue, 640 F.3d 881 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Meyer v. Astrue, 662 F. 3d 700 (4th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Roberts v. Astrue, No. 2:11-cv-2-FL, 2011 WL 6179272

(E.D.N.C. Nov. 17, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).. . . . . . . 21
Smith v. Schweiker, 728 F.2d 1158 (8th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 27
Veazey v. Astrue, Civil No. 6:10–cv-06058, 2011 WL 4500873

(W.D. Ark. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).. . . . . . . . . . . . . . . . 28
Woody v. Sec’y of Health and Human Servs., 859 F.2d 1156 (3d Cir. 1988). . . . 24

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STATUTES
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 405(g).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 30

REGULATIONS
20 C.F.R. § 404.1513.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
20 C.F.R. § 404.1527.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22-23, 28
20 C.F.R. § 404.1567.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

20 C.F.R. § 416.927.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23
20 C.F.R. § 416.967.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

OTHER
Social Security Ruling 83-10,1983 WL 31251 (S.S.A. 1983). . . . . . . . . . . . . . . . 20
Social Security Ruling 96-2p, 1996 WL 374188 (S.S.A. 1996).. . . . . . . . . . . 23, 29
Social Security Ruling 02-01, 2000 WL 628049 (S.S.A. 2000).. . . . . . . . . . . 16, 18


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STATEMENT OF JURISDICTION

This appeal is from the Order and Judgment of the United States District Court
for the Western District of North Carolina, dated January 25, 2013, which was the
subject of a motion under Fed. R. Civ. P. 59(e), resolved as of April 1, 2013,
affirming the decision of the Commissioner of Social Security (hereinafter
“Commissioner”) denying Ms. McKinney’s claims for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”). (JA 22-29, DE 24; JA 30, DE
25; JA 31-36, DE 29).1 The District Court had jurisdiction pursuant to 42 U.S.C. §
405(g), which grants original jurisdiction to the district courts to review a final
administrative decision by the Commissioner.

Ms. McKinney filed a timely Notice of Appeal with this Court dated May 27,
2013, entered into the District Court’s docket on May 29, 2013. (JA 37-38; AR 30).2
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). The
judgment of the District Court is final except that it may be subject to review in the
same manner as a judgment in other civil actions.

1
The citations to the record will be as follows: “AR” followed by the document
number on the district court docket sheet, followed by the page number of document.
“JA” refers to the Joint Appendix filed separately and “DE” refers to the docket
2
entry number from the district court docket sheet.

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STATEMENT OF THE ISSUES

I.

II.

The ALJ committed reversible error by failing to evaluate, or even address, Ms.
McKinney’s obesity and hallux limitus deformity.
The ALJ failed to comply with applicable legal standards in rejecting the
opinions of Dr. Smoker, Ms. McKinney’s treating physician.

STATEMENT OF THE CASE

A. Course of Proceedings and Dispositions Below
This matter arises from Ms. McKinney’s application for DIB and SSI benefits
filed on April 23, 2008, alleging disability commencing on May 6, 2007, due to
asthma, depression, back and leg pain, irritable bowel syndrome, ear problems, and
a hiatal hernia. (AR3 123-132, 141). Following denial of her claims, both initially
and upon reconsideration, Ms. McKinney requested a hearing, which was held on
June 18, 2010, before ALJ William T. Overton. (AR 30-50).

In an unfavorable decision dated July 21, 2010, ALJ Overton concluded that
Ms. McKinney retained the residual functional capacity (“RFC”) to perform light
work “that does not involve work around dust and other respiratory irritants and
exposure to temperature extremes due to a respiratory impairment; and takes into
account an emotional disorder with restrictions regarding the ability to do work
related activities consistent with Exhibit 16F.” (AR 20) (bolding omitted). Although
the ALJ found that Ms. McKinney suffers from severe, non-listing level, medically
determinable impairments of asthma, a back disorder, and an affective disorder, and
that her “impairments could reasonably be expected to cause the alleged symptoms[,]”
he determined that her allegations of disabling “symptoms are not credible to the

3

“AR” refers to the administrative record, which has been filed separately.

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extent they are inconsistent with the above residual functional capacity assessment.”
(AR 16, 22).

Ms. McKinney requested review of the ALJ’s hearing decision in August 2010,
in support of which she submitted a letter brief. (AR 10, 190-193). Thereafter, in a
Notice of Appeals Council Action dated June 9, 2011, the Appeals Council
summarily denied the request for review. (AR 4-9). The Appeals Council stated it
had “found no reason under our rules to review the ALJ’s] decision[.]” (AR 4).
Accordingly, the ALJ’s decision became the Commissioner’s final decision, and a
civil action was filed in the United States District Court for the Western District of
North Carolina on August 10, 2011. DE-1.

In response to arguments submitted by the parties, United States Magistrate
Judge Dennis L. Howell issued a Memorandum and Recommendation (“M&R”)
dated December 10, 2012, recommending affirming the Commissioner’s decision.
(JA 9-21, DE 19). In the M&R, the Magistrate Judge concluded that: (1) “the ALJ
considered the combined effects of Plaintiff’s impairments and adequately explained
his determination in the decision”; (2) any error in failing to mention obesity was
harmless; (3) any error in failing to address Ms. McKinney’s hallux limitus was
harmless; and (4) the ALJ properly rejected the opinion of Dr. Smoker, Ms.
McKinney’s treating physician. Id. at 6, 8, 11.

Ms. McKinney filed objections to the M&R on January 10, 2013, in response
to which no opposition was submitted. (DE 23). However, in an Order entered on
January 25, 2013, the District Court rejected these objections and adopted the M&R.
(JA 22-29; DE 24). The Clerk entered judgment on the same date. (AR 30; DE 25).

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Ms. McKinney then filed a Motion for Reconsideration, in regard to which a response
and reply brief followed. (DE 26; DE 27; DE 28). In an Order dated March 30, 2013,
which entered the docket on April 1, 2013, the District Court denied the Motion for
Reconsideration. (JA 31-36, DE 29). This appeal followed.


Statement of Facts.
1. Plaintiff’s age, education, and work experience. The Appellant,
Ms. McKinney, was born on February 26, 1965. (AR 123). Ms. McKinney has a
high school education and worked in product assembly and as a folder. (AR 33-34,
167).

B.

2. Relevant Medical Evidence.
Chad Smoker, M.D.: Treatment records from Dr. Smoker contained in the
record date from November 2003 through April 2010, and reveal treatment for
multiple conditions, including asthma, GERD, depression, low back pain, and
obesity. (AR 322-387, 430-435, 495-501).

On July 17, 2007, Dr. Smoker evaluated Ms. McKinney for anxiety and
radicular pain following a hysterectomy, noted her weight gain was frustrating her,
and continued her prescriptions for Paxil and Klonopin. (AR 329). Ms. McKinney
also participated in physical therapy from July to September 2007, during which she
experienced periods of improvement and worsening. (AR 304-314); see also (AR
326) (report to Dr. Smoker that physical therapy was only mildly effective). On July
30, 2007, Dr. Smoker evaluated her after a hospital visit associated with an attempt
to wean herself off Klonopin, becoming anxious, and drinking beer. (AR 328). Dr.
Smoker noted Ms. McKinney was frightened by the incident. Id.

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On August 9, 2007, Dr. Smoker noted his patient’s mood was anxious and her
affect tearful. (AR 328). She was again trying to wean herself from Klonopin and
was “doing poorly.” (AR 328). Dr. Smoker added Robaxin. Id. Despite some
improvement in her anxiety as of August 13, 2007, Ms. McKinney continued to have
tenderness throughout her lumbar musculature. (AR 327); see also (AR 326) (note
from August 27, 2007 reporting continued severe back pain, tenderness in the lumbar
region and over the SI joint).

In March, May, and June 2008, respectively, Dr. Smoker evaluated Ms.
McKinney for severe abdominal pain occurring after eating, allergy symptoms and
wheezing, and exacerbations of reflux, abdominal pain, low back pain with sciatica
along with anxiety. (AR 322-324). In January 2009, Dr. Smoker treated her for
worsening chronic low back pain and noted tenderness in the left lumbar region. (AR
435). He prescribed a muscle relaxant. Id.

On February 20, 2009, Dr. Smoker opined that Ms. McKinney had a
“combination of anxiety disorder and chronic low back pain (unresponsive to
physical therapy) that disables her to work.” (AR 434). He observed that he had “not
found an effective treatment for her low back pain” and that “[a]nxiety flares in work-
related situations.” Id. Less than a week, later Dr. Smoker prescribed Tramadol as
she was not receiving relief from Flexeril. (AR 435). He further treated her for
asthma exacerbation in May 2009, constipation, back pain, and panic attacks in July
2009, and myalgia and fatigue in August 2009. (AR 431-432). In March 2010, Dr.
Smoker evaluated her for constipation and GERD, prescribing medications and
testing. (AR 497-498). Worsened anxiety and “shakiness” was noted in April 2010,

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and Dr. Smoker started a trial of Lyrica and referred Ms. McKinney to psychiatry.
(AR 498).

Dr. Smoker recorded Ms. McKinney’s weight at 198 to 224 pounds during the
relevant period. See, e.g., (AR 323-326, 329) (198-224 lbs), (AR 431-433) (200-212
lbs), (AR 497-501) (200-210 lbs). Dr. Smoker also discussed Ms. McKinney’s
problems with weight. (AR 348, 375, 369). Dr. Smoker stated in April 2006 that she
was doing best when losing weight and taking Wellbutrin, but had subsequently
declined, with anxiety believed to be the underlying reason. (AR 347). On February
18, 2010, Dr. Smoker noted that Ms. McKinney had been experiencing “throbbing
in her left great toe for several months” and was worse with weight bearing. (AR
497). He perceived nonspecific tenderness on examination and referred her to
podiatry. Id.

Dr. Smoker completed several forms dated January 15, 2010, setting forth
opinions regarding Ms. McKinney’s limitations. In a Mental Impairment
Questionnaire, Dr. Smoker recounted that he had treated Ms. McKinney frequently
since November 2003 for panic attacks and chronic mechanical low back pain, and
that she had chronic severe anxiety that was only “marginally controlled” and “easily
exacerbated.” (AR 470). Dr. Smoker identified signs and symptoms including,
among others: appetite disturbance with weight change, decreased energy, difficulty
thinking or concentrating, psychomotor agitation or retardation, and emotional
lability. (AR 471). Dr. Smoker opined in part that Ms. McKinney would be unable
to meet competitive standards in her ability to (1) maintain attention for two hour
segments; (2) maintain regular attendance and punctuality; (3) sustain an ordinary

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routine without special supervision; (4) work in coordination with or proximity to
others without being unduly distracted; and (5) complete a normal workday and
workweek without interruptions from psychologically based symptoms. (AR 472).
The doctor also opined that she would be seriously limited in areas including her
ability to remember work-like procedures and get along with co-workers or peers
without unduly distracting them or exhibiting behavioral extremes. Id.

Dr. Smoker further specifically opined that Ms. McKinney’s psychiatric
condition exacerbates her experience of pain, noting that her chronic back and
abdominal pain affect, and are affected by, her anxiety. (AR 473). Her difficulties
in maintaining concentration, persistence, or pace, as well as social functioning, were
described as “marked.” Id. Dr. Smoker indicated that the presence of increased
mental demands or environmental change would cause decompensation, that Ms.
McKinney would average more than four absences per month, and that she was not
a malingerer. (AR 474-475).

Dr. Smoker also completed a Lumbar Spine Residual Functional Capacity
Questionnaire. (AR 476-479). Therein, the physician listed diagnoses of anxiety
disorder, asthma, low back pain, GERD, and chronic constipation; noted that Ms.
McKinney’s activities exacerbate her back pain; described her back and abdominal
pain as moderate to severe; and recounted findings of tenderness, muscle spasm, and
muscle weakness. (AR 476-477). Dr. Smoker further indicated that emotional
factors contribute to the symptoms and limitations and that Ms. McKinney would
“frequently” experience pain or other symptoms severe enough to interfere with
attention and concentration needed to perform even simple work tasks during a

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typical workday. (AR 477). He estimated that she could sit or stand for fifteen
minutes at a time, sit for a total of about four hours, and stand/walk about two hours
during an eight-hour workday. (AR 478). Dr. Smoker opined that Ms. McKinney
would need to be allowed to change positions at will and take unscheduled breaks
every two to three hours for about fifteen minutes each. Id. He indicated that she
would have both good and bad days, could rarely lift twenty pounds, occasionally lift
ten pounds and frequently less, but could never climb ladders and rarely stoop,
crouch, or squat. (AR 479). She could occasionally climb stairs or twist. Id.

On a Pulmonary Residual Functional Capacity Evaluation, Dr. Smoker stated
that Ms. McKinney’s pulmonary problems included shortness of breath, chest
tightness, wheezing, and episodic acute asthma precipitated by infections, allergens,
and stress. (AR 480). These attacks were rated as severe, infrequently causing
incapacitation for about a week. (AR 480-481). Regarding work stresses, Dr.
Smoker opined that Ms. McKinney could never handle high stress, rarely handle
moderate stress, and occasionally handle low stress. (AR 481). However, she would
need to avoid all exposure to cigarette smoke and fumes, odors, and gases; avoid even
moderate exposure to perfumes, soldering fluxes, solvents and cleaners, and
chemicals; and avoid concentrated exposure to extreme cold or heat, humidity,
wetness, and dust. (AR 483).

Dr. Robert L. van Brederode: On February 26, 2010, Dr. van Brederode, a
podiatrist, began treating Ms. McKinney. Dr. van Brederode relayed that the
throbbing, radiating pain had begun six months previous and was aggravated by
walking. (AR 492). Past treatment of shoe inserts were only somewhat helpful. Id.

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On examination, Dr. van Brederode noted multiple abnormal findings, including
limited range of motion and moderate pain on palpation. (AR 493). X-rays revealed
moderate spurring and cuneonavicular breach. Id. Dr. van Brederode diagnosed
hallus limitus and pain, prescribed a temporary orthotic, and administered a cortisone
injection. (AR 494).

On follow-up with Dr. van Brederode in March 2010, Ms. McKinney described
improvement, but she continued to have moderate pain in the affected joint, with pain
also noted on palpation. (AR 491). The treating podiatrist discussed the potential
need for surgery. Id. In April 2010, “some reduction of pain with use of the orthotic”
was reported.
However, worsening soreness of her first
metatarsophalangeal joint was noted. Id. Dr. van Brederode noted “[m]oderate joint
contracture, hallux limitus 1st MTPJ with pain on palpation and with joint ROM.” Id.
The podiatrist administered further injections and again discussed the potential
necessity of surgical intervention. Id. Ms. McKinney reported her foot was feeling
“better” as of May 13, 2010. Id.

(AR 490).

Anthony G. Carraway, M.D.: Dr. Carraway, a psychiatrist, examined Ms.
McKinney on behalf of DDS on November 24, 2008, and August 24, 2009. (AR 388-
391, 426-429). In both of his consultative evaluations, Dr. Carraway indicated Ms.
McKinney is obese. (AR 388, 426); see also (AR 197) (emergency room record
noting obesity). Regarding the 2008 interview, Dr. Carraway noted Ms. McKinney
displayed a rather anxious affect and her mood appeared “to be chronically worried.”
(AR 389). Her intellectual functioning appeared to be “rather low average[,]” she
thought there are 51 states in the United States, did not know if the sun is a planet or

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a star, and provided serial sevens as “‘93, 85.’” (AR 390). Dr. Carraway diagnosed
generalized anxiety disorder and early onset dysthymia, and noted ongoing health
concerns, chronic anxiety, and chronic depression. (AR 390-391). The psychiatrist
opined that Ms. McKinney’s “ability to perform simple repetitive tasks and to persist
at those tasks primarily would be limited by her objective physical findings as well
as by her somatic complaints. Also her overall level of anxiety may cause mild to
moderate difficulty with tasks persistence” whereas “[h]er stress tolerance appears to
be rather moderately impaired.” (AR 391).

During the 2009 evaluation, Ms. McKinney had an anxious presentation and
variable speech in terms of both rate and tone. (AR 427). Her thoughts were
somewhat circumstantial, believed 1/3 to be greater than 4/5, and “had two misses on
random letter testing.” (AR 428). In his assessment, Dr. Carraway essentially
confirmed the same diagnoses and functional limitations he described the prior year.
(AR 429).

State Agency RFC Assessments. A Psychiatric Review Technique form
(“PRTF”) dated January 12, 2009, sets forth opinions that due to Ms. McKinney’s
anxiety and dysthymia, she experiences moderate difficulties in social functioning
and in maintaining concentration, persistence, or pace, and mild restrictions of daily
living activities. (AR 398-411). An accompanying Mental Residual Functional
Capacity Assessment (“MRFCA”) identifies a number of moderate limitations,
impacting among other things the abilities to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; complete
a normal workday and workweek without interruptions from psychologically based

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symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; interact appropriately with the general public, accept
instructions and respond appropriately to criticism from supervisors; and respond
appropriately to changes in the work setting. (AR 412-413). Another PRTF and
MRFCA, dated September 14, 2009, set forth many of the same conclusions, but only
mild social functioning limitations and no associated restrictions to interacting with
the public and supervisors. (AR 436-453)
A Physical Residual Functional Capacity Assessment (“PRFCA”) dated

January 13, 2009, states conclusions of a capacity for lifting/carrying limited to 50
pounds occasionally and 25 pounds frequently, sitting and standing/walking for 6
hours per workday, and a need to avoid concentrated exposure to fumes, odors, dusts,
gases, poor ventilation and the like. (AR 416-423). A second PRFCA, dated October
23, 2009, expresses the same conclusions. (AR 462-469).

3. Summary of Testimony: Represented by counsel, Ms. McKinney
and a vocational expert (“VE”) testified at the hearing held on June 18, 2010. (AR
30-50). Ms. McKinney testified that she graduated from high school, is married, and
last worked at Baxter’s “on the pealing . . . dry side.” (AR 33). She last worked in
May 2007. (AR 36).

Ms. McKinney explained that she has problems with anxiety and panic, which
has worsened in recent years. (AR 34, 37). She is being treated for this by her family
physician, Dr. Smoker. (AR 36). As a result of her emotional problems, Ms.
McKinney is unable to focus and becomes nervous easily. (AR 36, 42). Asked why
she was tearful in the waiting room prior to the hearing, she stated she did not know

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and “[j]ust get[s] nervous[.]” (AR 42). She experiences panic attacks several times
a week. (AR 42-43). An attack can be triggered by something like the stress of
trying to cook. (AR 43). Ms. McKinney testified that she has trouble sleeping at
night and has reduced energy during the day. (AR 43-45). She also has emotional
outbursts on a weekly basis. (AR 45).
Ms. McKinney also suffers from asthma, which has attacked and left her

hospitalized for about a week at a time. (AR 35). Although she had not been
hospitalized recently as of the date of the hearing, she was still experiencing shortness
of breath, chest pain, wheezing, and chronic coughing. Id.; see also (AR 39-40).
Further, Ms. McKinney experiences pain in her back and other areas, along with leg
numbness. (AR 38, 41, 44). The back pain is aggravated by bending, standing, and
sitting. (AR 41). Ms. McKinney testified that she has problems with her feet, has
undergone injections, and would later require surgery. (AR 44). Additionally, she
suffers from constipation, acid reflux, a hiatal hernia, and irritable bowel syndrome.
(AR 38). She explained that “[e]very time I eat I get sick.” (AR 46). Her pain also
affects her ability to concentrate. (AR 45, 46).

Regarding daily activities, Ms. McKinney stated that she drives, but only short
distances. (AR 37). She prepares meals, goes to church on Sundays, and performs
household chores but does not “get a lot done in one day” as she does “some chores
and then I rest because I can’t do it and then I try to cook.” (AR 37, 44). Ms.
McKinney estimated that she could walk slowly for perhaps 30 minutes, sit for 20-30
minutes, and could stand about ten minutes before her leg goes numb in connection
with her back pain. (AR 40-41).

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The ALJ asked the VE to assume an individual with the residual functional
capacity for light work who “must avoid activities around dust and other respiratory
irritants and exposure to temperature extremes because of respiratory impairment and
finally . . . she has an emotional disorder with restrictions regarding her ability to do
work related activities consistent with 16F, part 3.” (AR 47); see (AR 438) (stating
“cmt is restricted to [simple routine repetitive tasks,] can understand and remember
simple instructions[,] can maintain attn/conc for 2 hours at a time as required for the
performance of simple tasks[,] can interact appro with others[, and] can adapt to
routine changes associated with simple tasks”). The VE responded by identifying
“some hand packagers, sorters, assemblers, inspectors, hostess or greeters.” (AR 47).
The VE stated “I don’t have the DOT numbers . . . . I get them from United Staff
Publishing.” (AR 49). The VE further stated that an employer would tolerate one
day of absenteeism per month, and that no jobs could be performed accepting the
limitations in Dr. Smoker’s report. (AR 48).


C.
The scope of this Court’s review encompasses determining whether the
Commissioner’s decision is supported by substantial evidence and whether the correct
legal standards were applied. Meyer v. Astrue, 662 F. 3d 700, 704 (4th Cir. 2011).
Under this limited standard of review, the court will not decide the facts anew, make
credibility determinations, or re-weigh the evidence. Johnson v. Barnhart, 434 F.3d
650, 653 (4th Cir. 2005).

Standard of Review

The substantial evidence test requires that an administrative decision be based
on “such relevant evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Id. However, in making this determination, the Court will review the
record as a whole, including any new evidence incorporated into the administrative
record by the Appeals Council. Meyer, 662 F. 3d at 704. A decision is not based on
substantial evidence if it focuses on certain aspects of the evidence while disregarding
other contrary evidence. See Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006)
(“This conclusion was not supported by substantial evidence because the record,
when read as a whole, reveals no inconsistency” as claimed by the ALJ, who
selectively cited evidence.). Further, while an ALJ’s factual findings are reviewed
for substantial evidence, no deference is owed when determining whether correct
legal standards were applied. Hines v. Bowen, 872 F.2d 56, 58 (4th Cir. 1989).

SUMMARY OF THE ARGUMENT

The ALJ rendered a decision in this case that is deficient in at least two
important ways. First, the ALJ failed even to mention two conditions, obesity and
hallus limitus deformity, in regard to which there is ample record evidence. The
ALJ’s failure to address Ms. McKinney’s obesity violated the Commissioner’s own
ruling and cannot properly be deemed harmless. Further, Ms. McKinney’s testimony
regarding her foot problem is corroborated by the objective medical evidence of
record, including x-rays. Although the record indicates that this impairment is
aggravated by walking, the ALJ ignored it in concluding that Ms. McKinney could
engage in the full exertional range of light work (AR 20), which involves the ability
to walk and stand for six hours each eight-hour workday. Accordingly, the ALJ was
at least required to consider the foot condition and make a reasoned determination as
to its duration and impact upon her residual functional capacity.

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Second, the ALJ failed to properly evaluate the opinion evidence from Dr.
Smoker, Ms. McKinney’s longtime treating physician. Dr. Smoker furnished many
specific opinions regarding Ms. McKinney’s functional capabilities, but the ALJ
sweepingly rejected them without even addressing much of their content, without
considering them in light of the regulatory factors, and without adequately explaining
why they were deemed inconsistent with the record as a whole. These errors require
remand for proper evaluation and the articulation of an adequate rationale.

This Court should determine that the ALJ’s errors, which include errors of law
and reasoning that preclude the proper affirmance of the ALJ’s decision even without
regard to whether substantial evidence to support the decision exists in the record,
warrant remand. Therefore, Ms. McKinney respectfully requests that this Court
reverse the District Court’s decision and remand this case to the District Court with
instructions to remand the matter to the Commissioner.

ARGUMENT

I.

THE ALJ COMMITTED REVERSIBLE ERROR BY FAILING
TO EVALUATE, OR EVEN ADDRESS, MS. McKINNEY’S
OBESITY AND HALLUX LIMITUS DEFORMITY.
A. Obesity
The medical record evidences that Ms. McKinney suffers from obesity.
Although she stands at only 5'0" to 5’1” tall, see (AR 38), her weight has generally
been recorded at 198 to 224 pounds during the relevant period. See, e.g., (AR 323-
326, 329) (198-224 lbs), (AR 431-433) (200-212 lbs), (AR 497-501) (200-210 lbs).
In both of his consultative evaluations, Dr. Caraway indicated Ms. McKinney is
obese. (AR 388, 426). Emergency room records also note obesity. (AR 197).

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Further, Dr. Smoker discussed Ms. McKinney’s problems with weight. (AR 348,
375, 369).

Despite this ample evidence of obesity, and the fact that Ms. McKinney was
acknowledged by the ALJ as suffering from impairments that can reasonably be
expected to be impacted by obesity, the ALJ did not even consider whether Ms.
McKinney’s obesity constituted a severe impairment and made no mention of it in his
assessment of her RFC. (AR 16-24).4 Social Security Ruling 02-01, 2000 WL
628049 (S.S.A. 2000) “directs an ALJ to consider a claimant’s obesity . . . at all
stages of the sequential evaluation.” Through SSR 02-01, the Commissioner has
specifically recognized the combined effects of obesity with other impairments may
be greater than what would be expected in the absence of obesity. The Ruling states
that obesity can limit both exertional and postural functions and provides that the
effects of obesity on these functions must be assessed, and that “[a]n assessment
should also be made of the effect obesity has upon the individual’s ability to perform
routine movement and necessary physical activity within the work environment.
Individuals with obesity may have problems with the ability to sustain a function over
time.” The Ruling further indicates the “effects of obesity with other impairments
may be greater than might be expected without obesity.” Having failed even to
mention Ms. McKinney’s obesity, the ALJ also failed to reveal consideration of the
dictates of this Ruling or application of the proper standard.

Even had the ALJ listed Plaintiff’s obesity as a severe impairment but failed
4
to consider it properly at subsequent steps, the ALJ would still have committed
reversible error. See, e.g., Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011)
(branding as the ALJ’s “gravest error” the failure to consider the claimant’s obesity,
which the ALJ “mentioned in passing . . . is a severe impairment”).

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The ALJ’s failure to reveal adequate consideration of Ms. McKinney’s obesity
at any step of the sequential evaluation process (let alone each of them) cannot
properly be deemed harmless error. In the court below, the Commissioner conceded
that the ALJ failed to address Ms. McKinney’s obesity in his decision, but argued that
the ALJ having asked her at the “hearing about her height and weight . . . indicates
that he did consider her obesity[.]” (DE 17 at 5). This Court should not hold that the
ALJ’s complete failure to address or make any findings about Ms. McKinney’s
obesity in his decision is somehow rendered harmless simply by her having testified
as to her height and weight. The ALJ gave no indication at the hearing of how he
viewed the obesity and in no way supplied the evaluation and findings missing from
the written decision.

Nor could the ALJ be considered to have impliedly accounted for obesity by
properly deferring to assessments from physicians who sufficiently factored the
condition into an opinion as to functional limitations. First, an ALJ cannot be
determined to have properly deferred to the conclusions of nonexaminers where the
ALJ did not properly evaluate and reject the treating physician evidence. As noted,
the ALJ erred in regard to his evaluation of the evidence from the treating physician,
Dr. Smoker. This evidence includes a statement apparently drawing a connection
between Ms. McKinney’s obesity with her anxiety. Dr. Smoker stated in April 2006
that she was doing best when losing weight and taking Wellbutrin, but had
subsequently declined, with anxiety believed to be the underlying reason. (AR 347).
Moreover, Dr. Smoker rendered detailed opinions regarding Ms. McKinney’s
functional limitations as a result of her impairments, including anxiety and chronic

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low back pain and abdominal pain. The ALJ, however, purportedly relied on the
conflicting conclusions of nonexamining State agency physicians, without ever
properly evaluating the evidence from Dr. Smoker. (AR 23, 423, 469).

In any event, even had the ALJ not erred in his deferral to the conclusions of
nonexaminers, remand would be appropriate concerning the ALJ’s complete failure
to address Ms. McKinney’s obesity. The ALJ’s error prevents the Court from
knowing whether the ALJ complied with the applicable standards in evaluating the
claim, including the directives set forth in SSR 02-1p. Cf., e.g., Roberts v. Astrue,
No. 2:11-cv-2-FL, 2011 WL 6179272 at *3 (E.D.N.C., Nov. 17, 2011) (holding that
given the ALJ’s lack of explanation remand was warranted “to allow more specific
findings with regard to Plaintiff’s obesity”). The ALJ’s complete failure to consider
Ms. McKinney’s obesity cannot properly be deemed harmless. Accordingly, this case
should be remanded on this basis as well.


B. Hallux Limitus
The medical record contains uncontradicted evidence that Ms. McKinney
suffers from foot problems including a left hallux limitus deformity. Yet, the ALJ
completely failed to consider this condition in his evaluation of Ms. McKinney’s
severe impairments and residual functional capacity. This error warrants remand.
On February 18, 2010, Dr. Smoker noted that Ms. McKinney had been
experiencing “throbbing in her left great toe for several months” and was worse with
weight bearing. (AR 497). He perceived nonspecific tenderness on examination and

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referred her to podiatry. Id. On February 26, 2010, Dr. van Brederode, a podiatrist,5
began treating Ms. McKinney. Dr. van Brederode relayed that the throbbing,
radiating pain had begun six months previous and was aggravated by walking. (AR
492). Past treatment of shoe inserts were only somewhat helpful. Id. On
examination, Dr. van Brederode noted multiple abnormal findings, including limited
range of motion and moderate pain on palpation. (AR 493). X-rays revealed
moderate spurring and cuneonavicular breach. Id. Dr. van Brederode diagnosed
hallus limitus and pain, prescribed a temporary orthotic, and administered a cortisone
injection. (AR 494).

On follow-up with Dr. van Brederode in March 2010, Ms. McKinney described
improvement, but she continued to have moderate pain in the affected joint, with pain
also noted on palpation. (AR 491). The treating podiatrist discussed the potential
need for surgery. Id. In April 2010, “some reduction of pain with use of the orthotic”
was reported.
However, worsening soreness of her first
metatarsophalangeal joint was noted. Id. Dr. van Brederode noted “[m]oderate joint
contracture, hallux limitus 1st MTPJ with pain on palpation and with joint ROM.” Id.
The podiatrist administered further injections and again discussed the potential
necessity of surgical intervention. Id.

(AR 490).

Although Ms. McKinney reported her foot was feeling “better” as of May 13,
2010, id., it cannot be assumed as a matter of law that a report of improvement
indicates her condition had fully resolved and did not need to be considered by the

In matters involving the feet, the opinions of podiatrists are entitled to the same

5
weight as those of medical doctors. 20 C.F.R. § 404.1513(a)(4).

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ALJ. To the contrary, Ms. McKinney testified in June 2010 that was still having
problems with her feet and would eventually need surgery. (AR 44). This testimony
is consistent with the objective medical evidence, and it was incumbent upon the ALJ
at least to consider Ms. McKinney’s foot condition and make a reasoned
determination as to its duration and impact upon her residual functional capacity.
Instead, the ALJ made no mention of Ms. McKinney’s foot condition and
found she could perform an unrestricted range of light work, which would require the
ability to stand and walk for six hours per eight-hour workday.6 The ALJ’s failure to
take note of the evidence, which would support greater limitations than he
acknowledged and was not considered by the reviewing sources upon whom he relied
(having formulated their conclusions before its inclusion in the record), was not
harmless as it indicates a substantial likelihood of prejudice. See, e.g., McLeod v.

6

Light work is defined as involving
lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities.

20 C.F.R. §§ 404.1567(b), 416.967(b) (emphasis added); see also Social Security
Ruling 83-10, 1983 WL 31251 (S.S.A. 1983) (light work entails “a good deal of
walking or standing,” which is the “primary difference between sedentary and most
light jobs”).

In order to be able to frequently lift or carry objects weighing up to 10 pounds
which is required to perform light work, an individual must be able to stand or walk,
off and on, for approximately six hours out of an 8-hour day: “Since frequent lifting
or carrying requires being on one’s feet up to two-thirds of a workday, the full range
of light work requires standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday.” SSR 83-10.

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Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396,
413, which “held that although some features of the record suggested that the error
was harmless, others suggested the opposite, and ‘[g]iven the uncertainties, we
believe it is appropriate to remand this case’”). To affirm in such a circumstance
would require a court to make factual findings and provide reasoning therefor in the
first instance,7 which is instead the role of the Commissioner at the administrative
level. As the Tenth Circuit has warned, “to the extent a harmless-error determination
rests on legal or evidentiary matters not considered by the ALJ, it risks violating the
general rule against post hoc justification of administrative action recognized in SEC
v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) and its progeny.”
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
II.

THE ALJ FAILED TO COMPLY WITH APPLICABLE LEGAL
STANDARDS IN REJECTING THE OPINIONS OF
DR. SMOKER, MS. McKINNEY’S TREATING PHYSICIAN.
The ALJ provided the following evaluation of the opinion evidence from Ms.

McKinney’s treating physician, Dr. Smoker:

The undersigned notes Dr. Smoker’s opinion in Exhibit 21F. Dr.
Smoker opined, among other things, that the claimant would likely be
absent from work more than four days per month and could rarely lift 20
pounds (Exhibit 21F). The undersigned also notes the forms Dr. Smoker
completed whereby he addressed mental allegations (Exhibits 20F and
23F). The undersigned rejects Dr. Smoker[’]s opinions as they are
inconsistent with the record as a whole and the objective evidence of
record.

(AR 22); see also (AR 20-21) (“Dr. Smoker completed a pulmonary form that noted
the claimant reported infrequent asthma attacks and respiratory problems[.] The

7 Indeed, the lower court herein resorted to finding in the first instance that Ms.
McKinney “failed to meet the durational requirement.” R-24 at 4.

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undersigned accords very little weight to this opinion as it is inconsistent with the
record and the objective findings.”). This evaluation is plainly inadequate and does
not justify the ALJ’s wholesale rejection of the detailed opinion evidence from Dr.
Smoker. The ALJ barely addressed any of the doctor’s opinions and failed to
evaluate them in accordance with established legal standards.

The regulations provide that more weight should be granted to the opinions of
a treating source because “[t]hese [treating] 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(d)(2), 416.927(d)(2). Similarly, the Fourth
Circuit has noted that courts typically “accord greater weight to the testimony of a
treating physician 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).

An ALJ must give the opinion of a treating source controlling weight if s/he
finds the opinion “well-supported by medically accepted clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in
[the] case record.” Id. Even where an ALJ finds a treating doctor’s opinion is not
“well-supported,” the opinion is still entitled to deference, and may not be
disregarded:

Adjudicators must remember that a finding that a treating source
medical opinion is not well-supported by medically acceptable clinical
and laboratory diagnostic techniques or is inconsistent with the other

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substantial evidence in the case record means only that the opinion is not
entitled to “controlling weight,” not that the opinion should be rejected.
Treating source medical opinions are still entitled to deference and must
be weighed using all of the factors provided in 20 CFR 404.1527 and
416.927. In many cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted, even if it does not
meet the test for controlling weight.

Social Security Ruling 96-2p. Therefore, if the opinion of a treating source is not
accorded controlling weight, an ALJ must apply certain factors – namely, the length
of the treatment relationship and the frequency of examination, the nature and extent
of the treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source - in
determining what weight to give the opinion. See 20 C.F.R. §§ 404.1527(d),
416.927(d).

The Fourth Circuit has held that the opinion of a treating physician is entitled
to great weight, unless there is persuasive contradictory evidence. See Coffman v.
Bowen, 829 F.2d 514, 517 (4th Cir. 1987). The ALJ must explain his reasons for
disregarding the opinion of a treating doctor. See DeLoatche v. Heckler, 715 F.2d
148 (4th Cir. 1983). The Commissioner “must present [the reviewing court] with
findings and determinations sufficiently articulated to permit meaningful judicial
review.” Id. at 150; see also SSR 96-2p, 1996 WL 374188 (S.S.A. 1996) (requiring
the ALJ’s decision to contain n“specific reasons for the weight given to the treating
source’s medical opinion, supported by 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”). This includes a requirement that the ALJ evaluate each of the factors listed

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in the regulations. See also Johnson, 434 F.3d at 654.

It is apparent the ALJ failed to comply with the applicable standards. Rather
than articulating adequate reasoning for refusing to give controlling weight to the
opinion evidence, and then proceeding to evaluate it pursuant to the required factors,
the ALJ generically proclaimed that Dr. Smoker’s opinions are inconsistent with the
record as a whole. This is insufficient on its face and does not permit meaningful
review. See DeLoatche, 715 F.2d at 150; see also, e.g., Woody v. Sec’y of Health and
Human Servs., 859 F.2d 1156, 1162 (3d Cir. 1988) (holding that an ALJ’s
“conclusory language does not permit meaningful review”)

Moreover, even had the ALJ identified specific inconsistencies, such would not
have automatically justified a wholesale rejection of Dr. Smoker’s opinions. As has
been correctly observed by a lower court in interpreting Fourth Circuit precedent,
“[i]n almost every case, there is some inconsistency which an ALJ may play upon to
diminish a treating physician’s view.” Cogdell v. Astrue, No. 8:10-105, 2010 WL
6243317, at *8 (D.S.C. Dec. 20, 2010). To have any meaning at all, the deference
owed a treating physician’s opinion “does not have force only after the treating
opinion is demonstrated to be the lone voice on an issue or without any critics
whatsoever. But, even where a treating opinion has proved undeserving of
controlling weight, there is a range of other value the ALJ might afford it.” Id. The
ALJ’s unqualified rejection of Dr. Smoker’s opinions due to the alleged existence of
inconsistency with other parts of the record cannot stand.

Further, Dr. Smoker did not merely render a narrow opinion regarding
functional limitations in a single area. As summarized below, he furnished a range

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of detailed opinions.

Dr. Smoker completed several forms on January 15, 2010, setting forth
opinions regarding Ms. McKinney’s limitations. In a Mental Impairment
Questionnaire, Dr. Smoker recounted that he had treated Ms. McKinney frequently
since November 2003 for panic attacks and chronic mechanical low back pain, and
that she had chronic severe anxiety that was only “marginally controlled” and “easily
exacerbated.” (AR 470). Dr. Smoker identified signs and symptoms including,
among others: appetite disturbance with weight change, decreased energy, difficulty
thinking or concentrating, psychomotor agitation or retardation, and emotional
lability. (AR 471). Dr. Smoker opined in part that Ms. McKinney would be unable
to meet competitive standards in her ability to (1) maintain attention for two hour
segments; (2) maintain regular attendance and punctuality; (3) sustain an ordinary
routine without special supervision; (4) work in coordination with or proximity to
others without being unduly distracted; and (5) complete a normal workday and
workweek without interruptions from psychologically based symptoms. (AR 472).
The doctor also opined that she would be seriously limited in areas including her
ability to remember work-like procedures and get along with co-workers or peers
without unduly distracting them or exhibiting behavioral extremes. Id.

Dr. Smoker further specifically opined that Ms. McKinney’s psychiatric
condition exacerbates her experience of pain, noting that her chronic back and
abdominal pain affect, and are affected by, her anxiety. (AR 473). Her difficulties
in maintaining concentration, persistence, or pace, as well as social functioning, were
described as “marked.” Id. Dr. Smoker indicated that the presence of increased

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mental demands or environmental change would cause decompensation, that Ms.
McKinney would average more than four absences per month, and that she was not
a malingerer. (AR 474-475).

Dr. Smoker also completed a Lumbar Spine Residual Functional Capacity
Questionnaire. (AR 476-479). Therein, the physician listed diagnoses of anxiety
disorder, asthma, low back pain, GERD, and chronic constipation; noted that Ms.
McKinney’s activities exacerbate her back pain; described her back and abdominal
pain as moderate to severe; and recounted findings of tenderness, muscle spasm, and
muscle weakness. (AR 476-477). Dr. Smoker further indicated that emotional
factors contribute to the symptoms and limitations and that Ms. McKinney would
“frequently” experience pain or other symptoms severe enough to interfere with
attention and concentration needed to perform even simple work tasks during a
typical workday. (AR 477). He estimated that she could sit or stand for fifteen
minutes at a time, sit for a total of about four hours, and stand/walk about two hours
during an eight-hour workday. (AR 478). Dr. Smoker opined that Ms. McKinney
would need to be allowed to change positions at will and take unscheduled breaks
every two to three hours for about fifteen minutes each. Id. He indicated that she
would have both good and bad days, could rarely lift twenty pounds, occasionally lift
ten pounds and frequently less, but could never climb ladders and rarely stoop,
crouch, or squat. (AR 479). She could occasionally climb stairs or twist. Id.

On a Pulmonary Residual Functional Capacity Evaluation, Dr. Smoker stated
that Ms. McKinney’s pulmonary problems included shortness of breath, chest
tightness, wheezing, and episodic acute asthma precipitated by infections, allergens,

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and stress. (AR 480). These attacks were rated as severe, infrequently causing
incapacitation for about a week. (AR 480-481). Regarding work stresses, Dr.
Smoker opined that Ms. McKinney could never handle high stress, rarely handle
moderate stress, and occasionally handle low stress. (AR 481). However, she would
need to avoid all exposure to cigarette smoke and fumes, odors, and gases; avoid even
moderate exposure to perfumes, soldering fluxes, solvents and cleaners, and
chemicals; and avoid concentrated exposure to extreme cold or heat, humidity,
wetness, and dust. (AR 483).

The ALJ barely addressed any of these opinions, which indisputably indicate
limitations beyond those the ALJ acknowledged,8 and clearly failed to evaluate them
in accordance with established legal standards. The ALJ failed to reveal
consideration of the opinions in light of the regulatory factors, did not discuss most
of the opinions at all, and failed to provide an actual explanation of how they were
inconsistent with the objective findings. Contrary to the lower court’s assertion that
“[t]he ALJ set forth in detail