Opinion
C/A No. 2:17-cv-01571-JMC-MGB
01-30-2019
MISTI NICOLE ALLEN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local 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). Plaintiff Misti Nicole Allen ("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 Administration (the "Administration") regarding her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 42 years old on her alleged disability onset date of March 23, 2015. (R. at 17, 240, 244.) Plaintiff alleged disability due to chronic back pain; difficulty moving; stiffness; numbness in right knee; fibromyalgia; arthritis in right hand; interstitial cystitis; post traumatic stress disorder; depression; anxiety; panic attacks; and insomnia. (Id. at 68.) Plaintiff has past relevant work as a billing clerk and an internal customer service/help desk representative. (Id. at 25, 53.)
Plaintiff filed an application for DIB and SSI on October 9, 2015. (Id. at 240, 244; Dkt. No. 16 at 2.) Her application was denied initially on January 5, 2016, and on reconsideration on March 4, 2016. (R. at 154-55, 162-63.) After a hearing before the Administrative Law Judge ("ALJ") on December 9, 2016, (id. at 34-56), the ALJ issued a decision on February 23, 2017, in which the ALJ found that Plaintiff was not disabled (id. at 17-27). The Appeals Council denied Plaintiff's request for review, (id. at 1-3), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the decision:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
(2) The claimant has not engaged in substantial gainful activity since March 23, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease of the lumbar spine, gastroesophageal reflux disease, hypertension, depression, and anxiety (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) [sic] I specifically find that the claimant can lift and carry 10 pounds occasionally and 5 pounds frequently, and she can sit for six hours of an eight hour work day and stand or walk for two hours in an eight hour day. I also find the claimant can never climb ladders, ropes, scaffolds, she can occasionally climb ramps, stairs, balance, stoop, kneel, crouch, and crawl. I further find the
claimant needs to avoid concentrated exposure to workplace hazards such as unprotected heights and moving machinery and vibration, and she can perform simple, routine tasks for two-hour blocks of time with normal rest breaks during an eight hour work day. She can have occasional interaction with the general public.(Id. at 19-25.)
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on March 31, 1972 and was 42 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(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 CFR Part 404, Subpart P, Appendix 2).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability to "engage in 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" twelve months. See 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382(a)(3)(A) (SSI context).
"[T]he definition of disability is the same under both DIB and SSI . . . ." Manson v. Colvin, No. 9:12-cv-1157-TLW-BM, 2013 WL 4042188, at *2 n.2 (D.S.C. Aug. 8, 2013) (citing Emberlin v. Astrue, No. 06-cv-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant—considering her age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; see also Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "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) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of her disability claim. First, Plaintiff alleges that the ALJ "committed reversible error by not assigning great weight" to the opinion of Plaintiff's treating psychiatrist, Dr. Geera Desai. (Dkt. No. 16 at 10.) Second, Plaintiff argues that the ALJ improperly "relied upon isolated portions of the reports of the treating and examining healthcare providers while ignoring the overall finding [sic] in these reports." (Id. at 14.) Third, Plaintiff alleges that the ALJ failed to assign proper weight to Plaintiff's testimony regarding her pain, impairments, and functional limitations. (Id. at 15-17.) Next, Plaintiff argues that the ALJ committed further reversible error by posing "inadequate hypothetical questions" to the vocational expert. (Id. at 17.) Finally, Plaintiff alleges that the ALJ erred in concluding that Plaintiff was capable of performing sedentary work in light of the objective medical evidence in the record. (Id. at 17-20.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned finds that the ALJ failed to adequately explain his decision to accord "little evidentiary weight" to the opinion of Dr. Desai—the only treating psychiatrist of record—and that his perfunctory rejection of this opinion was not supported by substantial evidence. Thus, for the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
A. Analysis of Treating Physician Opinion
Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. §§ 404.1545 and 416.945; see also 20 C.F.R. §§ 404.1527 and 416.927. The regulation, known as the "Treating Physician Rule," imposes a duty on the Commissioner to "evaluate every medical opinion we receive." 20 C.F.R. §§ 404.1527(c) and 416.927(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
The undersigned notes that the "Treating Physician Rule" applies only to claims filed before March 27, 2017. See 20 C.F.R. §§ 404.1527(c) and 416.927(c); see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017).
Under some circumstances, the opinions of treating physicians are to be accorded controlling weight. See id. (stating that the opinion of a treating physician is given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record"). However, even where the opinions of the claimant's treating physicians are not accorded controlling weight, the Commissioner is still obligated to weigh those opinions in light of a broad range of factors, including the examining relationship, the nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. 20 C.F.R. §§ 404.1527(c)(1)-(5) and 416.927(c)(1)-(5). "A treating physician is entitled to great weight because it reflects a judgment based on continuing observation over a number of years." Campbell v. Bowen, 800 F.2d 1247, 1250 (4th Cir. 1986). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5; see also 20 CFR §§ 404.1527(c)(2) and 416.927(c)(2); Hendrix v. Astrue, C/A No. 1:09-1283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010) (noting that although "an express discussion of each factor is not required," the ALJ must demonstrate that he applied the relevant factors in evaluating the opinion and provide good reasons for his decision).
In the instant case, Plaintiff's treating psychiatrist, Dr. Desai, provided a medical opinion dated March 23, 2015, stating that Plaintiff suffered from depression, anxiety, PTSD, chronic back pain, and panic attacks, and that Plaintiff had been "completely and totally disabled from performing her regular occupation" since April 2013 (the "2015 Opinion"). (R. at 425, 428.) More specifically, Dr. Desai noted that Plaintiff's conditions caused her to experience depression; anxiety; panic attacks; decreased sleep; feelings of hopeless; fatigue; difficulty concentrating; difficulty handling stress; crying spells; and anger outbursts. (Id. at 425-26.) Dr. Desai also described Plaintiff's restrictions, including, but not limited to, difficulty performing activities of daily living; difficulty lifting, bending, pushing, or pulling objects; difficulty sitting, standing, and walking for prolonged periods of time; difficulty sleeping at night and subsequent fatigue throughout the day; difficulty focusing; difficulty going up and down stairs; difficulty lifting or carrying over ten pounds; and difficulty driving due to panic attacks. (Id. at 426-27.) Based on her "medical education and experience," and her "specific knowledge of Plaintiff's problems and treatment history," Dr. Desai opined that Plaintiff would remain disabled "indefinitely into the future." (Id. at 428.)
The Commissioner argues that Dr. Desai's statement is not a "medical opinion" under the applicable regulations, but rather, constitutes "an administrative finding dispositive of the case" and is therefore "reserved to the Commissioner because it would direct a determination or decision of disability." (Dkt. No. 18 at 26.) A "medical opinion" is a statement from an acceptable medical source that reflects "judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(1) and 416.927(a)(1). Opinions on issues reserved to the Commissioner, such as whether a claimant is disabled, are not considered "medical opinions." 20 C.F.R. §§ 404.1527(d) and 416.927(d). Although the undersigned agrees that Dr. Desai's conclusion regarding Plaintiff's ultimate disability status is a legal finding reserved to the Commissioner, the remainder of Dr. Desai's statement (e.g., her judgments about the nature of Plaintiff's symptoms and limitations) constitutes a medical opinion entitled to special weight pursuant the Treating Physician Rule. See 20 C.F.R. §§ 404.1527(a)(1), (d), and 416.927(a)(1), (d). However, even if Dr. Desai's statement is not entitled to special weight, the ALJ is still obligated to adequately evaluate Dr. Desai's findings as part of the record and explain whether her statements support a finding of "not disabled." See Crowder v. Colvin, No. 8:15-CV-00533-BHH-JDA, 2016 WL 3381285, at *11-12 (D.S.C. May 18, 2016), adopted, No. CV 8:15-00533-BHH, 2016 WL 3227186 (D.S.C. June 13, 2016) (noting that "[t]reating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. 404.1527 and 416.927"); see also 20 C.F.R. §§ 404.1545(a)(3) and 416.945(a)(3) (stating that the Administration will "consider any statements about what [a claimant] can still do that have been provided by medical sources").
In rejecting Dr. Desai's 2015 Opinion, the ALJ provided the following explanation:
I note that Dr. Desai completed a questionnaire dated March 23, 2013 (Exhibits 5F and 11F) and opined the claimant was completely and totally disabled from any occupation and had been unable to work since April 2013 and through the indefinite future. I find that the statement was not supported by his treating notes
and no evidence in the record supports the opinion that Dr. Desai concluded. I give little evidentiary weight to Dr. Desai's summary statement and find that it is not supported by the medical evidence.(Id. at 25.)
Despite concluding that Dr. Desai's 2015 Opinion was not supported by her treatment notes or the medical evidence in the record, the ALJ notably failed to cite to any evidence that purportedly weakened or contradicted the 2015 Opinion. See Monroe, 826 F.3d at 191 (finding that the ALJ's analysis precluded meaningful review where he gave a medical opinion only "limited weight" based on a determination that "the objective evidence or the claimant's treatment history did not support the consultative examiner's findings," but failed to specify the evidence that supported his rejection of the opinion). To the contrary, Dr. Desai's treatment records reflect a sustained history of serious, ongoing mental health issues consistent with the statements in her 2015 Opinion. Specifically, the record contains over three years of treatment notes from Dr. Desai, which collectively demonstrate the progression of Plaintiff's anxiety, depression, panic attacks, and chronic pain from January 2013 through November 2016. (See R. at 413-20, 429-34, 482-89.) Indeed, Dr. Desai's treatment records consistently noted continued feelings of depression, anxiety, and fatigue (see id. at 413, 417-20, 429-30, 432, 434, 482, 484, 486, 488); difficulty focusing, sleeping, and increased anxiety due to Plaintiff's chronic pain (see id. at 416-17, 419, 429, 431, 488); difficulty driving because of anxiety and panic attacks (see id. at 417, 420, 430-31); and various medications needed to treat Plaintiff's mental health conditions (see id. at 413, 418-20, 429-30, 432, 434, 482, 484, 488). Dr. Desai's treatment records also stated that Plaintiff presented at her appointments seeming depressed, anxious, and agitated, and often cried throughout the sessions. (See id. at 417-18, 430, 432, 434.) Consistent with her 2015 Opinion, Dr. Desai diagnosed Plaintiff with anxiety disorder, panic attacks, and depression. (See id. at 432, 482.)
Furthermore, the other medical evidence of record also appears to be consistent with Dr. Desai's 2015 Opinion. For example, Dr. Bruce Kofoed, Ph.D., a state agency examiner to whom the ALJ accorded weight, expressly recommended in his opinion that the Administration "defer to records from Dr. Desai." (Id. at 24, 422.) Additionally, records from Plaintiff's providers at Spine & PainCare suggested that Plaintiff's pain had worsened overtime and increasingly affected her daily activities, and that Plaintiff had not found any significant improvement. (See id. at 467.) In keeping with the 2015 Opinion and Dr. Desai's treatment notes, the records from Spine & PainCare also opined that Plaintiff's mental health issues and chronic pain were interdependent, such that Plaintiff suffered physical symptoms from her psychiatric conditions ("psychogenic pain"). (See id. at 446, 467; see also id. at 403, 418, noting that Plaintiff displayed somatization throughout her sessions with Dr. Desai.) Indeed, Spine & PainCare suggested that Plaintiff would "benefit from government assistance due to psychiatric issues compounding chronic pain." (Id. at 446.)
Based on this record, the undersigned finds that the ALJ's conclusory explanation for the little evidentiary weight he accorded Dr. Desai's 2015 Opinion falls short of his obligations pursuant to the Treating Physician Rule. The ALJ did not provide "good reasons" for his rejection of Dr. Desai's opinion, and failed to mention, let alone analyze, any of the relevant factors under 20 C.F.R. §§ 404.1527 and 416.927, including Dr. Desai's long-standing treatment history with Plaintiff or her expertise as a psychiatrist. See, e.g., Green v. Colvin, No. 8:12-CV-2241 DCN, 2014 WL 793067, at *11 (D.S.C. Feb. 24, 2014) (finding that ALJ's failure to explain weight given to treating physician opinion was grounds for remand because, without sufficient explanation, the reviewing court cannot determine whether substantial evidence supports ALJ's decision); Thomas v. Colvin, No. 2:14-CV-383-RMG, 2015 WL 1909903, at *6-7 (D.S.C. Apr. 27, 2015) (finding that the rejection of treating physicians' opinions was not supported by substantial evidence where opinions were largely dismissed "without reference to the standards of the Treating Physician Rule").
Thus, without further explanation from the ALJ, the undersigned simply cannot conclude that the ALJ's boilerplate rejection of Dr. Desai's 2015 Opinion was supported by substantial evidence. See, e.g., Crowder v. Colvin, No. 8:15-CV-00533-BHH-JDA, 2016 WL 3381285, at *13 (D.S.C. May 18, 2016), adopted, No. CV 8:15-CV-00533-BHH, 2016 WL 3227186 (D.S.C. June 13, 2016) (remanding case where ALJ's decision stated, in a conclusory manner, that treating physician's medical source statement was not supported by medical evidence or physician's own treatment notes, but failed to point to any evidence of record demonstrating such); Green, 2014 WL 793067, at *12 (same); Fletcher v. Colvin, No. 0:12-CV-02888-DCN, 2014 WL 1252913, at *8-10 (D.S.C. Mar. 26, 2014) (same); Holloway v. Astrue, No. CIV.A. 8:10-1357-JFA, 2011 WL 1374885, at *10 (D.S.C. Mar. 30, 2011), adopted, No. CA 8:10-1357-JFA-JDA, 2011 WL 1376884 (D.S.C. Apr. 12, 2011) (same).
On remand, the ALJ should reevaluate and more thoroughly explain his findings regarding Dr. Desai's 2015 Opinion and treatment records. See Hurell v. Barnhart, 444 F. Supp. 2d 574, 577 (D.S.C. 2006) (remanding case for further consideration so that ALJ might adequately explain rationale in discrediting opinion of plaintiff's treating physician). The ALJ should also clarify the apparent confusion surrounding the date of the 2015 Opinion, which the ALJ improperly cited as "March 23, 2013." (R. at 22, 425-28.) While the Commissioner argues that the ALJ's misstatement was simply a typographical error, (Dkt. No. 18 at 23 n.5), the ALJ cited the incorrect year at least twice in his decision, (R. at 22, 25), and specifically placed the opinion chronologically at 2013 in his discussion of Dr. Desai's treatment records, (id. at 22). This potential error of fact is significant in that the ALJ may have given Dr. Desai's opinion less weight if he was under the impression that she completed the opinion in 2013. Indeed, Dr. Desai provided her opinion only after several years of treating Plaintiff and frequent individual counseling sessions, which provided repeated opportunities to observe Plaintiff's behavior and the progress of her conditions. Accordingly, to the extent the ALJ reviewed Dr. Desai's opinion with the mistaken belief that she wrote it in 2013 after a much shorter treatment relationship, his analysis may have been materially different with the proper date. See Selbee v. Astrue, No. C/A 8:08-810-GRA, 2009 WL 2257425, at *11 (D.S.C. July 29, 2009) (suggesting that a more recent opinion typically warrants greater weight, or, at the very least, an explanation as to why the ALJ favored an older opinion).
During the hearing, the vocational expert testified that Plaintiff would be unable to work in any job if she was off-task twenty percent of the workday, or if she had to miss two or more workdays each month. (R. at 55.) Thus, while the undersigned takes no position on whether the ALJ's current disability determination will be impacted following further assessment of the medical record, it is critical that the ALJ properly analyze Dr. Desai's opinions and determine whether the limitations described therein—to the extent the ALJ gives them weight—would result in being off-task twenty percent of the workday or in repeated absences from work. --------
B. Remaining Allegations of Error
The undersigned finds the ALJ's perfunctory analysis of Dr. Desai's opinion to be a sufficient basis on which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error, including Plaintiff's assertion that the ALJ failed to review the record as a whole, and relied instead on selective facts supporting only a finding of "not disabled." (Dkt. No. 16 at 13-20.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 30, 2019 Charleston, South Carolina