Opinion
C.A. No.: 6:19-1614-JMC-KFM
07-30-2020
Marshall Eugene Harrison, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on September 14, 2015, alleging that he became unable to work on December 8, 2011 (Tr. 281-84). The application was denied initially (Tr. 154-68) and on reconsideration (Tr. 169-85) by the Social Security Administration. On May 18, 2016, the plaintiff requested a hearing (Tr. 212-13). On March 8, 2018, an administrative hearing was held at which the plaintiff and Thomas C. Neil, Ph.D., an impartial vocational expert, appeared and testified in North Charleston, South Carolina (Tr. 85-128). On March 7, 2018, prior to the hearing, the plaintiff amended his alleged onset date to January 25, 2016 (Tr. 91, 295). On July 2, 2018, the ALJ considered the case de novo and found that the plaintiff was not under a disability through the plaintiff's date last insured as defined in the Social Security Act, as amended (Tr. 13-31). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on April 1, 2019 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2017.
(2) The claimant did not engage in substantial gainful activity during the period from his amended alleged onset date of January 25, 2016, through his date last insured of December 31, 2017 (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe combination of impairments: degenerative disc disease (DDD-lumbar and cervical spine), history of non-obstructive coronary artery disease (CAD), and asthma (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform less than the full range of light work as defined in 20 C.F.R. § 404.1567(b) except that he can frequently reach overhead bilaterally. The claimant can occasionally climb ramps and stairs, as well as occasionally stoop, kneel, crouch, and crawl. He can frequently balance. He can never climb ladders, ropes, or scaffolds. The claimant must avoid concentrated exposure to dust, odors, fumes, pulmonary irritants, and extremes of heat, cold, and humidity. Time off task can be accommodated by normal breaks.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on October 26, 1964 and was 53 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569, 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from January 25, 2016, the amended alleged onset date, through December 31, 2017, the date last insured (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to properly assess medical source opinions by Thomas R. Bolt, M.D. (doc. 12 at 14-19); (2) failing to explain the residual functional capacity ("RFC") findings (id. at 19-23); and (3) failing to appropriately evaluate the plaintiff's subjective complaints (id. at 24-27). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 14 at 11-25). For the reasons set forth in more detail below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g). Dr. Bolt's Physical Functioning Opinion
As noted, the plaintiff argues that the ALJ erred by rejecting Dr. Bolt's opinion regarding the plaintiff's physical functioning (doc. 12 at 14-19). The Commissioner asserts that the ALJ's dismissal of Dr. Hamilton's opinion is supported by substantial evidence because the ALJ's decision detailed the opinion by Dr. Bolt, the weight assigned to it, and its inconsistency with the record (doc. 14 at 11-14). The regulations require that all medical opinions in a case be considered. 20 C.F.R. § 404.1527(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. § 404.1527(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. § 404.1527(c)(1)-(5); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). However, "[t]he Fourth Circuit has not mandated that the ALJ expressly discuss each factor, and another court in this district has held that 'an express discussion of each factor is not required as long as the ALJ demonstrates that he applied the . . . factors and provides good reasons for his decision.'" Shuler v. Berryhill, C/A No. 0:16-CV-529-DCN, 2017 WL 3634595, at *3 (D.S.C. Aug. 23, 2017) (alteration in original) (quoting Hendrix v. Astrue, C.A. No. 1:09-01283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010)).
These regulations apply for applications, filed before March 27, 2017 ("old rules"). See 20 C.F.R. § 404.1527. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. § 404.1520c; see also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017).
Dr. Bolt began acting as the plaintiff's primary care provider in 2011. While treating the plaintiff, Dr. Bolt has issued three medical source statements: two opining consistent limitations in the plaintiff's physical functioning and one opining limitations in the plaintiff's mental functioning (Tr. 699, 886, 911). At question herein is a medical source statement by Dr. Bolt on January 28, 2016, opining limitations in the plaintiff's physical functioning (Tr. 911). The opinion noted that the plaintiff has ongoing back problems and that Dr. Bolt treats the plaintiff every two months. Dr. Bolt opined that the plaintiff's back problems limit his ability to sit, stand, or walk and that the plaintiff would need to alternate positions every thirty minutes to an hour. His January 28, 2016, opinion, as noted, is consistent with his opinion from May 29, 2014, wherein Dr. Bolt opined that the plaintiff would be limited to working four hours in an eight-hour day and would be excessively absent. Dr. Bolt's January 28, 2016, opinion also noted that his recommendations were in line with a functional capacity evaluation completed by Beth Pantone, P.T., in 2014, which said the plaintiff could not work more than four hours in an eight-hour day. Dr. Bolt further opined that he reviewed the agency definitions of sedentary and light work and that the plaintiff, at most, would be able to engage in sedentary work on a part-time capacity. Dr. Bolt further noted that since his prior opinion the plaintiff's physical condition has worsened. Dr. Bolt also noted that side effects from the plaintiff's medication would also limit the plaintiff's ability to work (Tr. 911).
The ALJ considered Dr. Bolt's opinion and assigned it little weight (Tr. 22). He noted as follows:
Similarly, little weight is accorded to the medical source statement Dr. Bolt completed on January 25, 2016, as it is not supported by the objective medical evidence of record. Dr. Bolt reported that the [plaintiff] was limited in his ability to sit, stand or walk and that he had to alternate positions every 30 minutes to 1-hour. He reported that a functional capacity evaluation was performed which showed that the [plaintiff] could not work in any capacity over about 4 hours per day. Dr. Bolt said that he had read the definition of sedentary and light work, and that the [plaintiff] would not qualify for light work and at best could only qualify for sedentary work on a part time capacity. Dr. Bolt opined that he did not "think" the [plaintiff] should lift over 10 pounds and reported that he was limited in his ability to sit, stand or walk. Dr. Bolt referenced the May 29, 2014, opinion he had given that the [plaintiff] could not work over 4-hours per day and that he would be excessively absent. Dr. Bolt reported that the [plaintiff's] condition had not changed, but had worsened; noting that the [plaintiff] was "even more limited" in what he could do. Dr. Bolt provided an opinion that the [plaintiff's] Lortab side effects, would preclude working. Notably[,] the [plaintiff] indicated that he can operate a riding lawn mower and drive an automobile, while being prescribed medication. Dr. Bolt offered no adverse objective physical findings of substance or consequence from any notes upon examination to support his opinion (Exhibit B28F).(Tr. 22-23). As an initial matter, apart from a conclusory reference to there being a lack of objective medical evidence to support Dr. Bolt's opinion, a review of the ALJ's decision includes no indication that the factors set forth in the regulations for evaluating medical source statements were considered in affording Dr. Bolt's opinion little weight (see Tr. 22-23). For example, although it appears that Dr. Bolt is recognized as one of the plaintiff's treating providers, the ALJ's decision does not reference the plaintiff's lengthy treatment relationship with Dr. Bolt. Moreover, beyond referencing a lack of objective medical evidence and that the plaintiff reported being able to drive and use a riding lawn mower, the ALJ's decision does not reference the consistency or supportability of Dr. Bolt's opinion in relation to the record evidence (see Tr. 22-23). Additionally, the ALJ's decision also appears to have rejected (without appropriate explanation) "the opinions of [the plaintiff's] treating physicians in favor of the state medical examiners; this raises red flags because the state medical opinions are issued by non-examining physicians and are typically afforded less weight than those by examining and treating physicians." Radford v. Colvin, 734 F.3d 288, 295-96 (4th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). Indeed, the ALJ's decision affords the state agency physicians considerable weight despite the fact that, Isabella McCall, M.D., the initial state agency reviewer, opined regarding the plaintiff's functioning on December 14, 2015, prior to Dr. Bolt's opinion as well as prior to the plaintiff's amended alleged onset date (Tr. 161-63). Additionally, although Hurley W. Knott, M.D., the reconsideration agency reviewer, opined regarding the plaintiff's functioning after the amended alleged onset date, on April 13, 2016, Dr. Knott's opinion only addressed three months of treatment post-dating the plaintiff's amended alleged onset date (Tr. 178-81).
Nevertheless, the Commissioner argues that the ALJ's decision does address the supportability of Dr. Bolt's opinion in affording Dr. Bolt's opinion little weight (doc. 14 at 12). However, the passing reference to Dr. Bolt's medical records by the ALJ does not explain how the ALJ accounted for the plaintiff's consistent treatment with Dr. Bolt for low back problems or the abnormal physical examination findings contained within Dr. Bolt's records. For example, although there are treatment notes from Dr. Bolt noting no abnormal physical examination findings, the majority of those records pre-date the plaintiff's original alleged onset date of December 8, 2011, and those falling after December 8, 2011, are sporadic (compare Tr. 462-67, 470-76, 479-80, 485-92 (falling before December 8, 2011) with Tr. 550-54, 632-33, 740-41, 749-52, 765-68 (falling after December 8, 2011). Indeed, physical examination findings during the majority of Dr. Bolt's treatment of the plaintiff note lumbar scoliosis with paralumbar tenderness on palpation and pain with forward flexing, on extension, and with left and right lateral side bending (Tr. 452-57, 477-78, 481-82, 548-49, 686-92, 695-96, 742-45, 747-48, 751-52, 761-62, 769-70, 884-85). Likewise, on several occasions, the plaintiff is noted as appearing in pain and guarding his lower back (Tr. 451-51, 454-55, 456-57). These examination findings support the limited functioning opined by Dr. Bolt in his opinion.
Of note, several of Dr. Bolt's treatment records are repeated at least twice in the record; however, it is unclear whether the Commissioner recognized that there are several duplications of Dr. Bolt's treatment records in the record—including repetition of treatment visits noting no abnormal physical examination findings.
The Commissioner also asserts that the ALJ's decision appropriately afforded Dr. Bolt's opinion little weight because Dr. Bolt's opinion is not consistent with the record evidence, including the plaintiff's sporadic medical treatment after the amended alleged onset date (doc. 14 at 13-14). However, other than referencing the plaintiff's alleged medication side effects, this argument by the Commissioner does not appear in the ALJ's decision; thus, it is a post hoc rationalization, which cannot be considered in undertaking substantial evidence review. See Moseley v. Berryhill, C/A No. 6:18-cv-01389-BHH-KFM, 2019 WL 2107917, at *10 (D.S.C. Apr. 22, 2019), Report and Recommendation adopted by 2019 WL 2106181 (D.S.C. May 14, 2019) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ." (quoting Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003))). Additionally, although Dr. Bolt's records do not include reference to side effects of medication, it is of note that the plaintiff's function reports and hearing testimony noted that his medication caused drowsiness and dizziness (Tr. 106-07, 326, 344).
Regardless, upon review, the record evidence is consistent with Dr. Bolt's opinion regarding the plaintiff's physical limitations. First, the plaintiff's sporadic medical treatment does not provide a basis for affording Dr. Bolt's opinion little weight based upon references in the record that the plaintiff could not afford medical treatment (Tr. 519, 559, 718, 733, 776, 913, 915, 919). See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (holding that it "flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him." (internal citation and quotation marks omitted)). Nonetheless, the Commissioner argues that Dr. Bolt's opinion is inconsistent with the conservative nature of the plaintiff's longitudinal medical records (doc. 14 at 13-14). However, the medical records, especially those after the plaintiff's amended alleged onset date, indicate that conservative treatment was not alleviating the plaintiff's symptoms. For example, on December 13, 2017, the plaintiff presented to George H. Khoury, M.D., at Roper St. Francis with low back pain and neck pain radiating into his shoulders. Physical examination findings of the plaintiff's neck and cervical spine revealed no palpable abnormality, no paraspinal tenderness, no paravertebral spasm, no percussion tenderness, and a normal range of motion. However, x-ray imaging of the plaintiff's back showed arthritic changes, and the plaintiff's motor strength was rated as a 4/5 in his left upper extremity. Dr. Khoury recommended that the plaintiff have an MRI completed as well as that the plaintiff undergo an epidural steroid injection (Tr. 925-27). The MRI, completed on December 20, 2017, noted chronic degenerative changes causing multi-level neural foraminal stenosis most pronounced at C6-7 and seen at a lesser degree at C4-5 and C5-6 (Tr. 931-32). Further, at a January 10, 2018, visit with Carolina Spine and Sport Rehab, Nancy Lembo, D.O., assessed the plaintiff with cervical spondylosis without myelopathy and cervical disc disorder with radiculopathy. Physical examination findings during this visit noted that the plaintiff's range of motion was painful on flexion and extension. The plaintiff had paraspinal tenderness of his lumbar spine, a flattening normal lordosis, with no evidence of a shift in the thoracolumbar spine. The plaintiff was prescribed Neurontin and recommended for a cervical facet joint injection because cortisone injections were not effective (Tr. 928-30).
Indeed, Dr. Bolt's opinion regarding the plaintiff's functioning is consistent with the plaintiff's longitudinal medical treatment detailing the plaintiff's worsening condition, including treatment pre-dating the plaintiff's amended alleged onset date. For example, as referenced by Dr. Bolt, his opined limitations are consistent with those opined by Ms. Pantone, who completed a physical functioning examination of the plaintiff on April 14, 2014, and noted that the plaintiff could only work four hours in an eight-hour day with sit/stand limitations of three hours (thirty-minute durations) and walk limitations of two to three hours (occasionally and walking moderately short distances) (Tr. 911 (citing Tr. 700-01, 704)). Further, x-rays of the plaintiff's lumbar spine consistently note scoliosis and arthritic changes (see Tr. 391 (October 6, 2010, lumbar x-ray findings of slight scoliosis and early arthritic change), 437 (November 17, 2011, x-ray noted a slight lean to the right, disc space narrowing at L5-S1 and L4-5, and facet arthrosis in the lower levels of the lumbar spine), 891 (December 4, 2015, lumbar x-ray findings of mild degenerative disc disease, mild to moderate facet arthropathy, grade 2 degenerative retrolisthesis of L2 on L3 and anterolisthesis of L3 on L4, and dextroconvex scoliosis)). Likewise, MRIs of the plaintiff's spine reflect the degenerative changes in the plaintiff's spine (see Tr. 392-93 (October 6, 2010, MRI showed broad based disc bulge and facet arthropathy producing mild central canal stenosis and mild lateral recess encroachment bilaterally at L4-L5), 439-40 (November 18, 2011, MRI showing mild to moderate non-compressive spondylosis).
Although the ALJ retains the authority to weigh medical opinions - and is not required to discuss every factor set forth in the regulations - it is legally insufficient for the ALJ's decision to recite some facts, ignore others, and make conclusory statements in support of its disregard for medical opinions provided by treating providers, such as Dr. Bolt. "A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D.N.C. Apr. 2, 2015) (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford, 734 F.3d at 295). Accordingly, this case should be remanded so that the ALJ may properly weigh Dr. Bolt's medical opinion under the standards promulgated by the applicable regulations and to explain in the written decision the weight given to Dr. Bolt's opinion.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, on remand, the ALJ is to also take into consideration the plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Although the plaintiff requests that the court remand this action for an award of benefits (doc. 12 at 27-28), the court finds that the plaintiff's entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above-discussed evidence by the ALJ in the first instance. See Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record). As such, based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED. July 30, 2020
Greenville, South Carolina
s/ Kevin F. McDonald
United States Magistrate Judge
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).