                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                        No. 18-2060


TAMMY S. KENEDY,

                    Plaintiff - Appellant,

             v.

ANDREW SAUL, Commissioner of Social Security,

                    Defendant - Appellee,

             and

SOCIAL SECURITY ADMINISTRATION,

                    Party - in - Interest.


Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:17-cv-00081-TDS-LPA)


Submitted: April 26, 2019                                         Decided: July 22, 2019


Before DIAZ and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Vacated and remanded by unpublished per curiam opinion.


J. Kevin Morton, Winston-Salem, North Carolina, for Appellant. Matthew G.T. Martin,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina; Eric P. Kressman, 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, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Tammy S. Kenedy appeals the district court’s order adopting the magistrate judge’s

recommendation and upholding the Administrative Law Judge’s (ALJ) denial of Kenedy’s

applications for disability insurance benefits (DIB) and supplemental security (SSI)

income. On appeal, Kenedy argues that the ALJ’s assessment of her residual functional

capacity (RFC) is not supported by substantial evidence because he did not follow the

regulatory requirements when assessing her credibility. Specifically, Kenedy contends that

the ALJ failed to build an accurate and logical bridge from the evidence to his conclusion

that her statements regarding the intensity and persistence of her asthma symptoms were

only partially credible. We agree. Accordingly, 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.

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

review as does the district court. That is, a reviewing court must uphold the determination

when an ALJ has applied correct legal standards and the ALJ’s factual findings are

supported by substantial evidence.” Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251,

267 (4th Cir. 2017) (citation and 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).   “In reviewing for substantial evidence, we do not undertake to reweigh

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

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of the ALJ. Where conflicting evidence allows reasonable minds to differ as to whether a

claimant is disabled, the responsibility for that decision falls on the ALJ.” Hancock v.

Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (brackets, citation, and internal quotation marks

omitted). We do not, however, “reflexively rubber-stamp an ALJ’s findings.” Lewis v.

Berryhill, 858 F.3d 858, 870 (4th Cir. 2017).

       “An ALJ reviews an application for SSI [and DIB] using a five-step process

established by the regulations of the Social Security Administration.” Thomas v. Berryhill,

916 F.3d 307, 310 (4th Cir. 2019); see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2019).

“Steps 1 through 3 ask: (1) whether the claimant is working; (2) if not, whether she has a

severe impairment; and (3) if she 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)

(internal quotation marks omitted). “Satisfying step 3 warrants an automatic finding of

disability, and relieves the decision maker from proceeding to steps 4 and 5.” Id. “If the

claimant fails at step [3], the ALJ must then determine the claimant’s [RFC], which has

been defined as the most [the claimant] can still do despite [her] physical and mental

limitations.” Brown, 873 F.3d at 254 (brackets and internal quotation marks omitted).

“After determining the claimant’s RFC, the ALJ proceeds to step [4]” and decides whether

the claimant is “able to perform [her] past work.” Id. at 255 (internal quotation marks

omitted). If the claimant is not able to perform her past work, “the ALJ finishes at step [5],

where the burden shifts to the Commissioner.”            Id.   To withhold benefits, “the

Commissioner must prove . . . that the claimant can perform other work that exists in



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significant numbers in the national economy, considering the claimant’s RFC, age,

education, and work experience.” Id. (brackets and internal quotation marks omitted).

       In assessing a claimant’s RFC, “[t]he ALJ must consider all of the claimant’s

physical and mental impairments, severe and otherwise, and determine, on a function-by-

function basis, how they affect the claimant’s ability to work,” offering “a narrative

discussion describing how the evidence supports each conclusion.” Thomas, 916 F.3d at

311 (brackets and internal quotation marks omitted). After “the ALJ has completed this

function-by-function analysis, the ALJ can make a finding as to the claimant’s RFC.” Id.

Thus, we have explained that “a proper RFC analysis has three components: (1) evidence,

(2) logical explanation, and (3) conclusion.” Id. “The ALJ’s logical explanation[] is just

as important as the other two” requirements because “meaningful review is frustrated when

an ALJ goes straight from listing evidence to stating a conclusion.” Id.

       “[A]n ALJ follows a two-step analysis when considering a claimant’s subjective

statements about impairments and symptoms.” Lewis, 858 F.3d at 865-66; see 20 C.F.R.

§§ 404.1529(b)-(c), 416.929(b)-(c) (2019). The ALJ first “looks for objective medical

evidence showing a condition that could reasonably produce the alleged symptoms” and

then “evaluate[s] 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.” Lewis, 858 F.3d at 866. The second step “requires the ALJ to assess the

credibility of the claimant’s statements about symptoms and their functional effects.” Id.

       The regulations instruct ALJs not to reject a claimant’s reports about the intensity

and persistence of her symptoms or about how her symptoms affect her ability to work

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solely because the medical evidence does not substantiate the reports. Id. Instead, when

examining the credibility of an individual’s statements, the ALJ “must consider the entire

case record, including the objective medical evidence, the individual’s own statements

about symptoms, statements and other information provided by treating or examining

physicians . . . about the symptoms and how they affect the individual, and any other

relevant evidence.” Social Security Ruling (SSR) 96-7p, 1996 WL 374186, at *1 (July 2,

1996). * An ALJ’s assessment of a claimant’s credibility regarding the intensity and

persistence of her symptoms is entitled to great weight when it is supported by the record.

See Hancock, 667 F.3d at 472. “Significantly, however, the ALJ must build an accurate

and logical bridge from the evidence to his conclusion that the claimant’s testimony was

not credible.” Brown, 873 F.3d at 269 (brackets and internal quotation marks omitted).

       We are troubled by several aspects of the ALJ’s credibility analysis in this case.

The ALJ determined that Kenedy’s claim that she was hospitalized for 14 days in July 2015

for asthma was not accurate, finding instead that she was hospitalized for only 5 days that

month for asthma. The record, however, supports Kenedy’s claim. She was admitted on

July 17 for shortness of breath, among other issues, and was discharged on July 21 after

receiving breathing treatments. She was readmitted the next day after complaining of,



       *
         Although the Commissioner rescinded SSR 96-7p in March 2016, that policy
statement was in effect at the time of the ALJ’s decision in November 2015. In any event,
the new SSR simply eliminates the term “credibility” to clarify that “subjective symptom
evaluation is not an examination of an individual’s character” but should be made in
accordance with the two-step process outlined in the regulations. SSR 16-3p, 2016 WL
1119029, at *1 (Mar. 16, 2016).

                                            6
among other symptoms, shortness of breath and chest-tightening, which are the symptoms

she typically experiences when she has an asthma exacerbation. The physical examination

supported Kenedy’s complaints, and she was discharged on July 31 with diagnoses of an

acute asthma exacerbation, severe persistent asthma, and an acute pulmonary embolism.

Thus, while Kenedy received treatment for other ailments during her hospitalization in July

2015, as she acknowledged in the hearing before the ALJ, a major part of her 14-day

hospital stay included treatment for her asthma exacerbation. Moreover, although the ALJ

reasonably concluded that Kenedy slightly exaggerated the number of times she visited the

emergency room for asthma exacerbations in 2015, the ALJ failed to explain how this

discrepancy in Kenedy’s testimony was relevant to the intensity or persistence of her

asthma exacerbations.

       Next, the ALJ relied on Kenedy’s lack of treatment for her lupus. Yet, SSR 96-7p

instructs that the ALJ “must not draw any inferences about an individual’s symptoms and

their functional effects from a failure to seek or pursue regular medical treatment without

first considering any explanations that the individual may provide.” SSR 96-7p, 1996 WL

374186, at *7; see Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Although a

history of sporadic treatment or the failure to follow a treatment plan can undermine a

claimant’s credibility, an ALJ must first explore the claimant’s reasons for the lack of

medical care before drawing a negative inference.”). The ALJ did not account for

Kenedy’s statement to the consultative examiner that she could not afford to see a

rheumatologist due to lack of insurance or her testimony that she was finally able to afford

the lupus medication after qualifying for Medicaid. Last, although the ALJ correctly

                                             7
observed that Kenedy did not often complain about her lupus symptoms to her physicians,

most of the physicians were specialists in other fields, and Kenedy was clear that her

asthma exacerbations prevented her from working.

       Based on the foregoing, we conclude the ALJ’s decision to only partially credit

Kenedy’s statements regarding the intensity and persistence of her asthma symptoms is not

supported by substantial evidence. Accordingly, 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




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