UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2277

ANTONIO BILOTTA,

Plaintiff − Appellant,

v.

ANDREW SAUL, Commissioner of Social Security,

Defendant – Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Frank D. Whitney, District Judge. (5:18-cv-00121-FDW-DSC)

Argued: December 9, 2020 Decided: March 10, 2021

Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.

Reversed and remanded with instructions by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.

ARGUED: George C. Piemonte, MARTIN JONES & PIEMONTE, PC, Charlotte, North Carolina, for Appellant. David Nathaniel Mervis, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for Appellee. ON BRIEF: R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Gill P. Beck, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. DIAZ, Circuit Judge:

Antonio Bilotta appeals the Social Security Administration’s denial of his

application for disability insurance benefits, contending that the administrative law judge

(“ALJ”) erred in finding that he had a marginal education and that he was capable of

medium work. We conclude that the record clearly establishes that Bilotta was disabled

during the relevant period. Accordingly, we reverse and remand the matter to the district

court with instructions to remand to the Commissioner for a calculation of benefits.

I.

A.

Bilotta was born in Italy. He attended school irregularly and quit in the third grade

to work on a farm with his parents, who were sharecroppers. In 1979, Bilotta moved to

Boston. There, he learned to lay tile from someone who spoke Italian to him. Bilotta

worked as a tile setter in the United States for more than twenty years, but he never learned

to read or write English beyond identifying most letters and printing his name. To this day,

he speaks English with a strong accent.

2 In 2007, Bilotta experienced severe pain in his right knee, which grew progressively

worse and was aggravated by walking. Later that year, surgeons performed an arthroscopic

partial lateral meniscectomy 1 and an open resection of a Baker’s cyst 2 on his right knee.

Bilotta felt fine for almost two years before his knee began hurting again. He started

taking over-the-counter pain medication daily to alleviate the symptoms. Bilotta then

applied for disability benefits 3 and the Social Security Administration referred Bilotta for

consultative physical and psychological examinations.

The examining physician, Dr. Aregai Girmay, observed that Bilotta had an

“abnormal range of motion on the bilateral knee, but the right is worse than the left.” A.R.

524. Bilotta reported that he had “chronic pain on both knees,” which is “sharp and

constant,” ranging from a three to a ten on a scale of one to ten, and “gets worse when he

is kneeling or bending.” A.R. 523. However, Girmay noted that Bilotta’s gait was normal

and that he could walk 100 feet without difficulty. Girmay concluded that Bilotta has a

“mild-to-moderate” limitation and may have osteoarthritis. A.R. 525. An x-ray taken in

November 2009 similarly reflected “[m]ild degenerative changes with minimal joint

effusion” in Bilotta’s right knee. A.R. 527.

1 This procedure removes a damaged portion of the lateral meniscus, which is the cartilage on the outer edge of the knee joint. 2 A Baker’s cyst is a fluid-filled bulge at the back of the knee that usually results from knee-joint conditions, such as arthritis, which cause the joint to overproduce lubricating fluid. 3 Bilotta abandoned this application before filing his current application for benefits.

3 John Bevis, a Licensed Psychological Associate, and Dr. Michael Fiore assessed

Bilotta’s mental status and administered achievement testing. Bilotta told them that “he

has problems with general weakness with pain and stiffness in his right knee, which

prevents him from kneeling down or standing or walking for more than a few minutes at a

time,” “he cannot go up or down a ladder” or “down stairs normally,” and “he is unable to

bend down or kneel.” A.R. 516. Indeed, Bevis and Fiore observed that Bilotta “ambulated

slowly as he is unable to kneel or bend his right knee, which prevents him from performing

physical labor that requires bending or lifting.” A.R. 517.

The achievement test results showed that Bilotta had a learning disability in math

and reading and was probably “functioning within the borderline range of intelligence,”

which may result in “difficulties relating to fellow workers and supervisors.” A.R. 518–

19. His performance in reading and writing was at or below the kindergarten level. Bevis

and Fiore thus concluded that Bilotta would “require assistance in managing his personal,

financial, and business affairs, as [he] is illiterate.” A.R. 520.

On February 23, 2010, Bilotta saw Dr. Michael Roberts, an orthopedist, for pain

and swelling in his right knee. Roberts observed that Bilotta walked with a “bit of a limp

favoring the right knee.” A.R. 543. X-rays on Bilotta’s knees showed “degenerative

arthritic changes, lateral compartment most seriously involved and right is worse than left.”

Id. Roberts assessed Bilotta with right knee arthritis with “significant effusion” and

“diffuse tenderness,” administered an anti-inflammatory injection, and prescribed a

nonsteroidal anti-inflammatory drug. Id.

4 Bilotta met with Roberts and a chiropractor several more times in 2012 and beyond

for his knee pain. Bilotta’s medical records include his body mass indices (“BMIs”) from

2008 to 2015, which ranged from 33 to 36.

B.

To collect disability insurance benefits, the claimant must prove that he was disabled

before the date last insured. See

(i), 423. Here, the parties agree that

Bilotta’s date last insured was December 31, 2010. Bilotta submitted his current

application for disability insurance benefits in 2012, alleging that he had been disabled

since January 1, 2008. He later amended his date of disability to February 23, 2010.

Bilotta’s lawyer completed the benefits application. In response to questions

regarding Bilotta’s work activities, the lawyer wrote that the answers were estimates based

on “a typical person who installs ceramic tile” because Bilotta “has trouble communicating

over the phone and in English.” A.R. 392. But some of the answers on the application are

plainly incorrect. See, e.g., A.R. 390 (“What is your height without shoes? 9’ 9.” What

is your weight without shoes? 999 lbs.”). The application also states that Bilotta can’t

“speak and understand English” but can “read and understand English” and “write more

than [his] name in English.” A.R. 389.

The Social Security Administration denied Bilotta’s application. Bilotta requested

reconsideration, and in February 2012, the agency had Bilotta’s records independently

reviewed by physical and psychological consultants.

The physical consultants opined that Bilotta was able to lift and carry 25 pounds

frequently and 50 pounds occasionally, and was able to stand and walk for six hours of an

5 eight-hour day during the relevant period. They thus concluded that Bilotta had the residual

functional capacity to perform medium work 4 but that he was limited to occasional

climbing and frequent balancing, kneeling, crouching, and crawling.

The psychological consultants agreed with the earlier Bevis-Fiore conclusions that

Bilotta had borderline intellectual functioning and a learning disability, resulting in

moderate difficulties in social functioning. They also noted that Bilotta apparently “learned

very little in school” and concluded that because Bilotta prefers Italian, “achievement

testing in English would not be suitable.” A.R. 139, 150.

The Social Security Administration again denied Bilotta’s application for benefits,

and Bilotta requested a hearing before an ALJ. An ALJ must employ the five-step

evaluation process set out in

to determine whether the claimant has

a disability and is therefore entitled to benefits. The process begins with the sequential

consideration of whether the claimant “(1) worked during the alleged period of disability;

(2) had a severe impairment; [and] (3) had an impairment that met or equaled the

requirements of a listed impairment.” Hancock v. Astrue,

(4th Cir. 2012)

(citing

(a)(4)).

4 Medium work involves lifting or carrying 25 pounds frequently and 50 pounds occasionally. See

(c). “A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday” and “being on one’s feet for most of the workday is critical.” SSR 83-10,

, at *6 (Jan. 1, 1983). Medium work also “usually requires frequent bending-stooping,” for which “[f]lexibility of the knees” is “important.”

6 “If the first three steps do not lead to a conclusive determination, the ALJ then

assesses the claimant’s residual functional capacity, which is ‘the most’ the claimant ‘can

still do despite’ physical and mental limitations that affect [his] ability to work.” Mascio

v. Colvin,

(4th Cir. 2015) (quoting

(a)(1)). In light

of that residual functional capacity, the ALJ then determines whether the claimant “(4) can

return to [his] past relevant work; and (5) if not, can perform any other work in the national

economy” considering the claimant’s age, education, and work experience. Hancock,

(citing

(a)(4)).

An ALJ heard Bilotta’s claim and found that the first three steps were inconclusive.

He then determined that Bilotta was illiterate and had the residual functional capacity to

perform light work, 5 but that Bilotta wasn’t disabled because he could have performed

other work in the national economy during the relevant period. Bilotta requested review

of the decision. The Appeals Council granted review, vacated the ALJ’s decision, and

remanded for a second hearing to address the following issues: (1) the impact of Bilotta’s

borderline intellectual functioning on his residual functional capacity; (2) the frequency of

Bilotta’s need to alternate between sitting and standing; (3) the psychological consultants’

opinions on Bilotta’s difficulties with social functioning; and (4) the effect of the assessed

limitations on the availability of work in the national economy.

5 Like medium work, light work may involve “a good deal of walking or standing,” but it may also involve “sitting most of the time but with some pushing and pulling of arm- hand or leg-foot controls.” SSR 83-10,

, at *5.

7 On remand, the ALJ considered additional evidence but ultimately reached the same

conclusions. Bilotta again requested review. The Appeals Council granted review, once

again vacated the ALJ’s decision, and remanded for a third hearing before a new ALJ. This

time, the Appeals Council instructed the ALJ on remand to reassess Bilotta’s residual

functional capacity because the agency consultants indicated that Bilotta was limited to

medium work, but the previous ALJ had found (without sufficient explanation) that Bilotta

was limited to light work. The Appeals Council explained that “the claimant’s maximum

residual functional capacity is a determinative issue” because “Medical-Vocational grid

rule 202.09[] directs a finding of disabled if the claimant is illiterate” and can only perform

light work. A.R. 201–02.

C.

A new ALJ conducted Bilotta’s third hearing. The ALJ found that during the period

at issue, Bilotta’s only severe impairment was osteoarthritis of the right knee. The ALJ

discounted the Bevis-Fiore diagnoses of mental impairments (Bilotta’s learning disability

and borderline intellectual functioning), because the tests were administered in English

rather than Bilotta’s native Italian, and because Bilotta had previously performed skilled

work as a tile setter. A.R. 16. As a result, the first three steps were inconclusive as to

disability.

The ALJ next determined that during the period at issue, Bilotta had the functional

capacity to perform medium work with certain limitations to accommodate the

osteoarthritis in his right knee. Specifically, the work could involve only occasional

kneeling, crouching, crawling, or climbing of ladders, ropes, or scaffolds. The ALJ also

8 found that Bilotta has “a marginal education and is able to communicate in English”

without providing any further explanation of that finding. A.R. 20. The ALJ then

concluded at steps four and five that Bilotta couldn’t return to work as a tile setter but could

have performed other work during the relevant period and thus wasn’t disabled. The

Appeals Council denied Bilotta’s request for reconsideration, making this the agency’s

final decision.

Having exhausted his administrative remedies, Bilotta brought suit against the

Commissioner of Social Security. The parties filed cross-motions for summary judgment.

A magistrate judge determined that the ALJ’s conclusions were supported by substantial

evidence and that the ALJ properly relied on the vocational expert’s testimony. The district

court adopted the magistrate judge’s memorandum and recommendation, granted summary

judgment to the Commissioner, and affirmed the ALJ’s decision.

This appeal followed.

II.

Bilotta argues that the ALJ lacked substantial evidence to find that he had a marginal

education and the residual functional capacity to perform medium work. 6 Our review of

6 Bilotta also contends that the ALJ erred by relying on a vocational expert’s testimony without reconciling that testimony with the Dictionary of Occupational Titles. Because we need not reach this issue to determine that Bilotta is disabled, we decline to address it further.

9 the record indeed compels the conclusion that Bilotta is illiterate and incapable of medium

work. As a result, we hold that he is disabled under the Social Security Act.

A.

We review a grant of summary judgment de novo, applying the same standard of

review that the district court used. Reid v. Comm’r of Soc. Sec.,

(4th

Cir. 2014). Accordingly, we review whether “the ALJ applied the correct legal standards”

de novo, and whether “the factual findings are supported by substantial evidence.” Pearson

v. Colvin,

(4th Cir. 2015). “Substantial evidence is that which a

reasonable mind might accept as adequate to support a conclusion,” and “consists of more

than a mere scintilla of evidence but may be less than a preponderance.” Pearson,

.

“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill,

(2019). “Yet even under this deferential standard, we do not

‘reflexively rubber-stamp an ALJ’s findings.’” Arakas v. Comm’r,

(4th

Cir. 2020) (quoting Lewis v. Berryhill,

(4th Cir. 2017)).

B.

We begin with the ALJ’s finding that Bilotta has a marginal education. Education

level is one of the “vocational factors” considered at step five of the disability evaluation

process. See

(a)(4)(v), (g). In 2010, the regulations defined five

10 education levels: illiteracy, marginal education, limited education, high school education

and above, and inability to communicate in English. 7

(b) (1980).

“Illiteracy means the inability to read or write.” 8

at (b)(1). A claimant is

“illiterate if the person cannot read or write a simple message such as instructions or

inventory lists even though the person can sign his or her name. Generally, an illiterate

person has had little or no formal schooling.”

A claimant has a “marginal education”

if the person has “ability in reasoning, arithmetic, and language skills which are needed to

do simple, unskilled types of jobs.”

at (b)(2). Generally, “formal schooling at a 6th

grade level or less is a marginal education.”

But because “the numerical grade level

that [the claimant] completed in school may not represent [his] actual educational abilities,”

the agency will only use numerical grade level to determine educational abilities “if there

is no other evidence to contradict it.”

at (b).

7 In 2020, the Social Security Administration eliminated the “inability to communicate in English” category because changes in the national economy have increased the number of jobs available to those with limited English proficiency. See Removing Inability To Communicate in English as an Education Category,

-01, 10587–92 (Feb. 25, 2020). 8 The parties, the ALJ, and the district court all assumed that “illiteracy” means the inability to read and write in English. We thus do the same and note that, at least prior to the 2020 amendments, the regulations were widely understood this way. See

(b) (1980) (“Because English is the dominant language of the [United States], it may be difficult for someone who doesn’t speak and understand English to do a job, regardless of the amount of education the person may have in another language. . . . [The Social Security Administration] will ask you . . . whether you are able to speak, understand, read and write in English.” (emphasis added)); see also, e.g., Chavez v. Dep’t of Health and Human Servs.,

(9th Cir. 1996) (“[F]or the purposes of these regulations, only literacy in English is considered, since literacy in other languages has little effect on the number of jobs in the national economy available to the claimant.”).

11 In her decision, the ALJ determined without discussion that Bilotta has “a marginal

education.” A.R. 20. This alone is reversible error, because we have no basis on which to

evaluate the ALJ’s ruling. See Radford v. Colvin,

(4th Cir. 2013) (“A

necessary predicate to engaging in substantial evidence review is a record of the basis for

the ALJ’s ruling . . . . includ[ing] a discussion of which evidence the ALJ found credible

and why, and specific application of the pertinent legal requirements to the record

evidence.”).

The ALJ’s conclusion is especially puzzling because she also noted that “illiteracy

is not a medically determinable impairment and is not included in the claimant’s residual

functional capacity” but that she accounted for Bilotta’s illiteracy at step five of the

disability evaluation process. A.R. 20. The ALJ thus recognized Bilotta’s illiteracy when

analyzing his claim, as she did when she questioned Bilotta and the vocational expert at

the administrative hearing. See, e.g., A.R. 98 (“Now you don’t read very well -- you don’t

read in English.”). But the ALJ didn’t reconcile Bilotta’s illiteracy with, or otherwise

justify, her finding that Bilotta has a marginal education.

The Commissioner and the district court valiantly attempt to fill in the ALJ’s

reasoning. Principally, they rely on the ALJ’s explanation of her rejection of the Bevis-

Fiore conclusions on Bilotta’s learning disability and borderline intellectual function: first,

because the tests were administered in English rather than Bilotta’s native Italian, they

don’t accurately measure Bilotta’s abilities; and second, Bilotta previously performed

skilled work as a tile setter and “made no allegation whatsoever that he cannot mentally

perform his past work,” demonstrating that his intellectual function is greater than the test

12 results suggest. A.R. 16. They also note that Bilotta testified at the administrative hearing

in English without a translator. Finally, they point to the statements on Bilotta’s 2012

application asserting that Bilotta can read and understand English and write more than his

name in English.

But even if the ALJ had relied on any of these facts, none of them amount to

substantial evidence that Bilotta has a marginal education. Neither Bilotta’s ability to cut

tile nor his ability to speak English suggest that he can read and write in English. And even

if it was reasonable for the ALJ to “discount the results” of the Bevis-Fiore psychological

testing based on Bilotta’s weakness in English, Resp. Br. at 27, the Commissioner doesn’t

explain why the same would apply to the Bevis-Fiore opinion on Bilotta’s illiteracy. To

the contrary, an exam administered in English seems to be an entirely sensible way to assess

English literacy.

Moreover, the Commissioner himself admits that the application form is

problematic—namely because someone else filled it out and it “unquestionably contains

errors.” Resp. Br. at 27 (citing A.R. 398). No reasonable adjudicator would take this

mistake-laden form alone as adequate to support the conclusion that Bilotta is literate.

In fact, the record is replete with evidence indicating that Bilotta is illiterate. Bilotta

had no formal schooling in the United States and can’t read or write in English. His wife

confirmed that Bilotta is illiterate and stated that she reads his mail to him and handles his

bills. The only experts to opine on the matter, Bevis and Fiore, also concluded that Bilotta

is illiterate and that he struggles to read and write in English at the level of a kindergartner.

Cf. Skinner v. Sec’y of Health & Human Servs.,

(6th Cir. 1990) (holding

13 that a claimant whose test results show that he reads and writes at or below the third-grade

level is illiterate); Eggleston v. Bowen,

(10th Cir. 1988) (same for a

claimant with test results “at the first grade level or below in reading, spelling and math”).

And to the extent that the ALJ considered Bilotta’s limited schooling in Italy, the copious

contradictory evidence precludes reliance on his numerical grade level to determine his

educational category.

On this record, there’s no serious doubt that Bilotta is illiterate.

C.

Next, we address the ALJ’s finding that Bilotta could perform medium work with

the limitation that he can only “occasionally climb ladders, ropes or scaffolds, kneel,

crouch or crawl.” A.R. 17. The ALJ offered the following explanation in support of this

finding:

[Medium work] capacity is supported by the objective medical evidence of record that shows prior to Bilotta’s date last insured he did not have a severe impairment that interfered with his ability to perform work activity. . . . X- rays of the claimant’s knees in February 2012, showed some degenerative changes, right worse than the left; however, there was [sic] no treatment records prior to the date last insured that showed the claimant experienced significant limitations due to his knee impairment. The claimant’s gait was normal, he had normal range of motion of his knee, and he did not require an assistive device for ambulation. There was nothing at all to support the need for a sit/stand option.

A.R. 19. But rather than provide substantial evidence of Bilotta’s capacity for medium

work, this paragraph only exposes the ALJ’s inaccurate and incomplete understanding of

the evidence.

14 For starters, the x-ray showing degeneration in Bilotta’s right knee was taken in

February 2010, not (as the ALJ writes) in 2012. And this is no mere scrivener’s error, as

the Commissioner claims. Not only is the ALJ’s misunderstanding of the date consistent

with her comment about the lack of treatment records before the date last insured, but the

ALJ also misstated the date of this same x-ray a second time in her decision. See A.R. 18

(“X-rays of the claimant’s knees in February 2012 showed some degenerative arthritic

changes of the lateral compartment worse on the right than the left.”).

Nor does the ALJ recite any other evidence related to Bilotta’s appointment with

Dr. Roberts in February 2010, aside from the bare fact that it took place—even though it

was the only medical treatment Bilotta received during the relevant period. Throughout

her decision, the ALJ describes Roberts’s 2012 treatment notes, stating that Bilotta

presented with a normal gait, “mild effusion of the knee,” and “no palpable tenderness.”

See A.R. 18–19. But the ALJ omits any mention of Roberts’s 2010 treatment notes, in

which he described more serious symptoms; i.e., that Bilotta had “a bit of a limp favoring

the right knee,” “significant effusion of the right knee,” and “diffuse tenderness.” A.R.

543. Alongside the x-ray, these notes constitute “treatment records prior to the date last

insured,” belying the ALJ’s assertions that Bilotta lacked such evidence, that he walked

with a normal gait, and that no evidence supported his need for a sit/stand option. A.R. 19.

In addition, the ALJ didn’t address Bilotta’s obesity. Bilotta’s medical records

include his BMI over several years, which consistently showed that he was obese. See SSR

02-1P,

, at *2 (Sept. 12, 2002) (describing obesity as a BMI of 30 or

above). As the Commissioner argues, Bilotta’s obesity “may or may not” have exacerbated

15 Bilotta’s symptoms. Response Br. at 23; see also SSR 02-1P,

, at *6

(“The combined effects of obesity with other impairments may be greater than might be

expected without obesity.”). But the ALJ’s failure to address it at all is reversible error.

(“[The Social Security Administration] consider[s] obesity to be a medically

determinable impairment and remind[s] adjudicators to consider its effects when

evaluating disability.”).

In sum, the ALJ effectively “cherrypick[ed] facts that support a finding of

nondisability while ignoring evidence that points to a disability finding.” 9 Lewis,

. That evidence includes the only objective medical evidence available from the

relevant period, and the very evidence that should have been accorded the most weight

under the regulations based on Dr. Roberts’s status as an examining physician, a treating

physician, and a specialist in the relevant area of medicine. See

(c)(1), (2), (5); see also

at (c)(2) (“If we find that a treating source’s medical

opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported

by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case record, we will give it

controlling weight.”); SSR 96-2p,

, at *4 (July 2, 1996) (“In many cases,

a treating [physician’s] medical opinion will be entitled to the greatest weight and should

9 The ALJ made other errors in her recitation of the evidence. For example, the ALJ mistakenly asserts that the November 2009 x-ray was of Bilotta’s left knee when it was actually of his right knee, and that Bilotta told Girmay that his pain rated only a three on a scale of one to ten when Bilotta actually said that his pain ranged from a three to a ten on a scale of one to ten.

16 be adopted, even if it does not meet the test for controlling weight.”). The ALJ thus failed

to “build an accurate and logical bridge from the evidence to [her] conclusions,” and

thereby lacked substantial evidence for her finding that Bilotta could perform medium

work. See Monroe v. Colvin,

(4th Cir. 2016).

In an effort to patch these holes in the ALJ’s decision, the Commissioner points out

that the ALJ relied on the non-examining agency consultants’ review of Bilotta’s medical

records in concluding that he could perform medium work, and that those consultants both

properly dated the x-rays and considered Roberts’s 2010 treatment notes. 10 But the

consultants too never mentioned Bilotta’s obesity. Moreover, “a non-examining

physician’s opinion cannot, by itself, serve as substantial evidence supporting a denial of

disability benefits when it is contradicted by all of the other evidence in the record.” Smith

v. Schweiker,

(4th Cir. 1986).

A fair assessment of the record makes plain that in 2010, Bilotta simply wasn’t

capable of medium work. In late 2009, Bilotta described his knee pain to several examining

agency consultants. To Dr. Girmay, Bilotta explained that the pain was constant and felt

worse when he bended. Bilotta also told Bevis and Fiore that his knee prevented him from

“standing or walking for more than a few minutes at a time” and from bending. A.R. 516.

Such pain would have prevented Bilotta from performing medium work, which requires

10 The Commissioner also directs us to evidence that Bilotta worked on a few occasions from 2014–2016, but this sheds no light on whether Bilotta could perform medium work in 2010.

17 standing or walking for six hours in an eight-hour workday and usually requires frequent

bending.

In this circuit, if “an underlying impairment capable of causing pain is shown,

subjective evidence of the pain, its intensity or degree can, by itself, support a finding of

disability.” Hines v. Barnhart,

(4th Cir. 2006). Bilotta’s osteoarthritis

in his knee is a “medically determinable impairment” that could reasonably be expected to

produce his symptoms of pain. See

(b); SSR 16-3p,

, at *3 (Mar. 16, 2016). Having established that condition, Bilotta is “entitled to

rely exclusively on his subjective evidence” of that pain to support his claim of disability

during the relevant period. Hines,

.

Of course, if “[o]bjective medical evidence of pain, its intensity or degree” is

available, it should also be considered.

. Here, all of the objective medical

evidence corroborates Bilotta’s knee pain. Bilotta’s obesity supports his descriptions of

the severity of the pain. See SSR 02-1P,

, at *6 (“[S]omeone with

obesity and arthritis affecting a weight-bearing joint may have more pain and limitation

than might be expected from the arthritis alone.”). And in November 2009, Dr. Girmay

noted that Bilotta walked with a normal gait, while Bevis and Fiore observed that Bilotta

ambulated slowly due to his knee, which is consistent with Bilotta’s description that his

pain level varied.

The x-rays show that the condition of Bilotta’s right knee deteriorated between

November 2009 and February 2010, which suggests that the joint would have felt the same

or worse by the time he reached the relevant period. The only objective medical evidence

18 from the relevant period—i.e., Dr. Roberts’s 2010 treatment notes, which must be afforded

the greatest weight—reveals that Bilotta walked with a limp favoring his right knee and

had significant effusion and diffuse tenderness in that knee. This further substantiates

Bilotta’s description of his knee pain.

The record as a whole thus demonstrates that Bilotta’s pain would have prevented

him from bending frequently and being on his feet long enough to perform medium work.

Instead, “the most” that Bilotta “c[ould] still do” during the relevant period would have

been light or sedentary work. Mascio,

. 11

D.

This court has the “power to enter, upon the pleadings and transcript of the record,

a judgment affirming, modifying, or reversing the decision of the Commissioner of Social

Security, with or without remanding the cause for a rehearing.”

(g). We

have previously “awarded disability benefits without remand where the record clearly

establishes the claimant’s entitlement to benefits and another ALJ hearing on remand

would serve no useful purpose.” Arakas,

(citing Hines v. Barnhart,

(4th Cir. 2006); Crider v. Harris,

(4th Cir. 1980)).

11 Bilotta alleges that the ALJ made several other errors in her analysis of residual functional capacity, such as stating that Bilotta didn’t have a severe impairment, crediting Roberts over Girmay on the flexion in Bilotta’s knees, and drawing adverse inferences because Bilotta sought treatment infrequently from 2010–2012. But because we don’t need to consider these issues to conclude that Bilotta couldn’t perform medium work, we decline to do so.

19 As the Commissioner concedes, if Bilotta was illiterate and limited to light work

during the relevant period, he was disabled. See Resp. Br. at 32 n.9; 20 C.F.R. pt. 404,

subpt. P, app. 2, § 202.09 (providing that an individual 50–54 years old who is limited to

light work and is illiterate is disabled). As we have explained, the record clearly establishes

both, and therefore Bilotta’s disability. Moreover, despite his meritorious claim, Bilotta

has been waiting for his disability benefits for almost ten years, during which he has

endured three ALJ hearings and was “forced to undergo costly litigation . . . solely because

of the agency’s errors.” Arakas,

. Because “remanding the case for yet

another ALJ hearing would be not only pointless, but also unjust,”

we instead award

Bilotta his long overdue benefits.

* * *

For these reasons, we reverse the district court’s judgment. We remand the case to

the district court with instructions to remand to the agency for a calculation of disability

benefits.

REVERSED AND REMANDED WITH INSTRUCTIONS

20