Opinion
C. A. 6:23-cv-00444-MGL-KFM
11-06-2023
Barbara B.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES 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 28 U.S.C. § 636(b)(1)(B). 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 her claim for disability insurance benefits under Title II of the Social Security Act.
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.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) on December 28, 2015, alleging that she became unable to work on November 24, 2014 (Tr. 239-40). The application was denied initially (Tr. 111-22, 124) and on reconsideration (Tr. 125-38) by the Social Security Administration. On June 24, 2016, the plaintiff requested a hearing (Tr. 155-56). On April 10, 2018, an administrative hearing was held at which the plaintiff, represented by counsel, and Carey A. Washington, an impartial vocational expert, appeared and testified before the administrative law judge (“ALJ”) assigned to the case (T r. 42-89). On August 16, 2018, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 18-41). 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 July 17, 2019 (Tr. 1-4).
On August 23, 2019, the plaintiff filed a complaint in the United States District Court for the District of South Carolina, and on January 4, 2021, the case was remanded to the Commissioner for further proceedings (Tr. 1070-87). Boddie v. Comm'r Soc. Sec. Admin., C/A No. 6:19-cv-02375-MGL, at doc. 23 (D.S.C. Jan. 4, 2021). On March 15, 2021, the Appeals Council issued an order remanding the matter to the ALJ to issue a new decision in accordance with the order (Tr. 1090).
On October 22, 2021, a second administrative hearing was held at which the plaintiff, represented by counsel, and Sandra Bruff, an impartial vocational expert, appeared and testified before the ALJ by telephone due to the COVID-19 pandemic (Tr. 1008-31). On November 17, 2021, the ALJ found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (T r. 976-1007). 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 December 6, 2022 (Tr. 962-65). 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 June 30, 2015.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of
November 24, 2014, through her date last insured of June 30, 2015 (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: depression, anxiety, posterior tibial tendinosis of the left ankle, carpal tunnel syndrome, obesity, diabetes mellitus, and migraines/headaches (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, and 404.1526).
(5) After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except frequent pushing/pulling with the upper extremities; no climbing of ropes, ladders, and scaffolds; no crawling; occasional stooping; frequent climbing of ramps and stairs, balancing, kneeling, and crouching; frequent overhead reaching with the right upper extremity; frequent handling and finger; occasional exposure to loud background noise; occasional exposure to hazards (dangerous moving machinery and unprotected heights); could perform simple and detailed work with occasional decision-making; frequent judgment required on the job; occasional changes in the work setting; and a reasoning level up to and including three. This could be performed on a sustained basis eight hours a day, five days a week in two-hour increments with normal breaks for an eight-hour day. In addition, she could have occasional contact with the public and coworkers.
(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 September 23, 1962, and was 52 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 (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 and 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from November 24, 2014, the alleged onset date, through June 30, 2015, 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 her 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 she is unable to return to her past relevant work because of her 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 the 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, who was 52 years old on the alleged disability onset date, seeks disability based upon depression that prevents her from leaving the house, concentrating, or being around other people. She has past relevant work experience as an elementary school teacher, embroidery machine operator, and small business owner (Tr. 997). The plaintiff argues that the ALJ erred by: (1) failing to properly explain the mental residual functional capacity (“RFC”) findings (doc. 10 at 19-22) and (2) failing to properly assess opinion evidence (id. at 22-33). The plaintiff requests that this matter be remanded with an award of benefits (id. at 33). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence, should be affirmed, and that benefits should not be awarded (doc. 13 at 12-27).
Mental Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3). Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
After careful consideration of the entire record, I find that, through the date last insured, the [plaintiff] had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except frequent pushing/pulling with the upper extremities; no climbing of ropes, ladders, and scaffolds; no crawling; occasional stooping; frequent climbing of ramps and stairs, balancing, kneeling, and crouching; frequent overhead reaching with the right upper extremity; frequent handling and finger; occasional exposure to loud background noise; occasional exposure to hazards (dangerous moving machinery and unprotected heights); could perform simple and detailed work with occasional decision-making; frequent judgment required on the job; occasional changes in the work setting; and a reasoning level up to and including three. This could be performed on a sustained basis eight hours a day, five days a week in two-hour increments with normal breaks for an eight hour day. In addition, she could have occasional contact with the public and coworkers.(Tr. 982). The RFC was followed by a discussion of the record evidence by the ALJ (Tr. 982-96).
The plaintiff argues that the ALJ erred in explaining the mental RFC assessment because it was less restrictive than the mental RFC assessment in a prior decision and because the ALJ did not adopt all of the limitations of the state agency examiner opinions to which he provided great weight (doc. 10 at 19-22). The undersigned finds these argument unavailing. As an initial matter, to the extent the plaintiff argues that the ALJ erred by assessing a different mental RFC in the decision at question than in his first decision (that was previously remanded), such a claim fails because the prior decision by the ALJ was vacated by this court, as confirmed in the Appeals Council's remand order (see Tr. 1073-74 (reversing and remanding the ALJ's first decision), 1090 (vacating the ALJ's first decision and remanding the case for further proceedings - including a new decision)). As such, because the ALJ's first decision was vacated, the ALJ was not bound by the determination or findings in the first decision. See Monroe v. Colvin, 826 F.3d 176, 186-87 (4th Cir. 2016) (holding that res judicata did not apply to an ALJ decision that was vacated and remanded after review by the Appeals Council). As such, a difference in the mental RFC assessment in the ALJ's first decision and the decision at question herein does not provide a basis for finding that the mental RFC assessment was not supported by substantial evidence.
The plaintiff's only other argument with respect to the mental RFC analysis is that the ALJ erred by failing to adopt the recommended limitations regarding short and simple tasks/instructions of two state agency psychological consultants whose opinions he afforded great weight (doc. 10 at 20-21). The opinions relied on by the plaintiff in making this assertion are from Xanthia Harkness, Ph.D. and Rebekah Jackson, Ph.D. (Tr. 104-06, 119-21). Dr. Harkness opined, pertinent hereto, that the plaintiff would be limited to short simple instructions and simple tasks (Tr. 106). Dr. Jackson opined, in pertinent part, that the plaintiff would be limited to simple tasks and instructions (Tr. 120). The plaintiff is correct that the ALJ afforded the opinions from Drs. Harkness and Jackson great weight, finding them generally consistent with the record evidence (T r. 993-94). However, it is well-settled that “the law does not require the ALJ to incorporate [in the RFC] every limitation found by a physician whose opinion the ALJ gave significant weight.” See Jordan v. Berryhill, C/A No. 0:17-cv-02354-BHH, 2019 WL 1074819, at *4 (D.S.C. Mar. 7, 2019) (internal citation omitted). As such, the ALJ did not err in affording Drs. Harkness and Jackson great weight despite not adopting all of their opined limitations. As such, the ALJ's evaluation of opinion evidence from Drs. Harkness and Jackson does not undermine the substantial evidence supporting the ALJ's mental RFC analysis.
To the extent the plaintiff's arguments regarding the mental RFC assessment relies on her assertion that the ALJ erred in his consideration of other opinion evidence of record, the undersigned addresses the ALJ's evaluation of opinion evidence, infra.
Further, although the plaintiff does not offer any other argument in arguing that the mental RFC analysis was inadequate, the undersigned notes that the ALJ's decision contained a clear discussion regarding the mental RFC findings - including a specific explanation of how he determined that the plaintiff could engage in simple and detailed work. For example, the ALJ recognized that the plaintiff had minimal mental health treatment during the relevant period and that examination findings during the minimal mental health treatment did not support greater limitations than imposed - including that the plaintiff could engage in simple and detailed work (with other limitations) (Tr. 987-88). Indeed, the ALJ noted:
[I]n limiting the [plaintiff] to simple and detailed work I found the activities of daily living, work activity, applying for unemployment benefits and the mental longitudinal history persuasive. The [plaintiff] was reported to have depressed mood and affect, anxiety, depression and was nervous and anxious (Exhibits 33F, 22F, 15F, 6F and 1F). On the other hand the mental longitudinal history revealed normal attention, concentration, mood and affect (Exhibits 36F, 34F, 33F, 31F, 24F, 22F, 15F, 13F and 6F). At the first hearing the claimant testified that she would go on the Internet, text, email, cook and do laundry. When balancing these factors I was persuaded the [plaintiff] could perform simple and detailed work.(Tr. 988). Additionally, as recognized by the ALJ, although the plaintiff received inpatient mental health treatment from November 24-28, 2014, the inpatient treatment was secondary to stress at the plaintiff's job, and, upon discharge, William D. Lambert, M.D., noted that the plaintiff had a brightened mood, and her self-destructive ideation had totally abated (Tr. 443-46, 452-54, 455-75, 988-89). Subsequent treatment records from Piedmont Psychiatric Services noted examination findings of dysphoric and angry mood, intact short and long-term memory, normal concentration and focus, average judgment and insight, obsessive thought processes, and no gross cognitive deficits (Tr. 988 citing (Tr. 537-42, 559-67)). The only other treatment records falling during the relevant period (other than physical therapy records), were two visits with Cassie Anderson, A.P.N., and one visit with Wayne Sida, M.D., and these records, as recognized by the ALJ, supported the mental RFC assessment (Tr. 500-02, 517-20, 646-48). For example, although the plaintiff presented to Ms. Anderson on December 19, 2014, with an abnormal appearance and as extremely anxious, her mood and affect were normal (Tr. 500-02). When the plaintiff presented to neurologist Dr. Sida one month later, she had normal examination findings (she was noted as wearing a boot on her foot secondary to a tendon injury), including a normal mental status examination (Tr. 519). Similarly, when the plaintiff presented to Ms. Anderson for treatment on February 24, 2015, she complained of a hemorrhoid, fever, diarrhea, and body aches and was noted as having a normal mood and affect upon examination (Tr. 646-48). As noted by the ALJ, these minimal treatment records did not support greater mental RFC limitations than those he assessed.
Likewise, as recognized by the ALJ, the plaintiff's reported activities of daily living (“ADLs”) did not support greater mental RFC limitations than provided (Tr. 988). For example, the plaintiff indicated on a function report and testified that she played piano at church at least a couple of times a month, cooked, washed dishes, did the laundry, dusted, watched television, shopped for groceries, cleaned the kitchen, cleaned the living room, used social media, texted, emailed, and used a computer (Tr. 273-80, 988-89). These ADLs, as recognized by the ALJ, did not require the imposition of additional mental RFC limitations. The Fourth Circuit has held that while an RFC assessment must include a narrative describing how the evidence supports the ALJ's conclusions, there is no particular format or language that must be utilized, so long as the decision permits meaningful judicial review. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Here, as outlined above, the ALJ's decision, with its detailed discussion of the plaintiff's mental RFC, permits such review. As such, the undersigned finds that the ALJ's mental RFC assessment is supported by substantial evidence, free from legal error, and should be affirmed.
Medical Source Statements
The plaintiff also argues that the ALJ failed to appropriately evaluate opinion evidence from treating providers Joseph Friddle, P.A./Jeff Smith, M.D.; James E. Ford, III, M.D.; and Dr. Lambert (doc. 10 at 22-33). 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, “[w]hile an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021) (emphasis in original).
These regulations apply for applications filed before March 27, 2017. 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). Here, the plaintiff's DIB application was filed before March 27, 2017; thus, the opinions have been analyzed under the old rules.
Recently, the Court of Appeals for the Fourth Circuit reiterated the treating physician rule, explaining that it “requires that ALJs give ‘controlling weight' to a treating physician's opinion on the nature and severity of the [plaintiff's] impairment if that opinion is (1) ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) ‘not inconsistent with the other substantial evidence' in the record.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106 (4th Cir. 2020). The court went on to note that a treating physician opinion “must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Id. at 107 (emphasis in original) (citations omitted).
The ALJ's decision contains several pages analyzing the above opinions (see Tr. 989-92, 995-96). With respect to Mr. Friddle/Dr. Smith, the ALJ afforded the opinions limited weight (Tr. 991-92). The ALJ afforded the majority of Dr. Ford's opinions limited weight, but provided great weight to Dr. Ford's opinions regarding the plaintiff's social isolation and withdrawal (Tr. 989-91). The ALJ likewise afforded limited weight to Dr. Lambert's opinions (T r. 995-96). The court addresses the plaintiff's arguments with respect to each opinion in turn.
Mr. Friddle/Dr. Smith
On January 29, 2015, Mr. Friddle completed a medical form for the plaintiff's employer regarding medical leave. Mr. Friddle noted that the plaintiff's condition commenced September 29, 2014, and was expected to last six to twelve months. Mr. Friddle treated the plaintiff on January 9, 2015, and January 28, 2015, after a hospital stay in November 2014. The plaintiff would need treatment visits for her condition at least twice a year and would require medication (but not other treatment) for her condition. The condition was not pregnancy related, and the plaintiff was unable to perform the functions of her job due to the condition. Mr. Friddle noted that the plaintiff was “emotionally unstable and unable to be punctual, reliable, or communicate [with] students and staff in an appropriate manner. Unable to maintain focus and perform tasks accurately and/or efficiently.” The plaintiff's diagnoses included major depression and anxiety disorder, and her symptoms included increased anxiety, increased stress, crying spells, anhedonia, mood swings, difficulty concentrating, sadness, and difficulty initiating and maintaining sleep. The plaintiff would be incapacitated for a continuing period from September 29, 2014, through July 1, 2015. The plaintiff would require follow up treatment appointments that were medically necessary, including pharmacology appointments every two to four weeks for twenty minutes. The plaintiff would have flare ups that would prevent her from working two to three times per month, and they would last 24 hours a day (Tr. 555-57). Attached to the form, dated February 11, 2015, is a form entitled “Attending Physician's Statement of Disability,” which is signed by Mr. Friddle and Dr. Smith. That form indicated that the plaintiff's condition began November 24, 2014. The plaintiff was ambulatory with subjective symptoms of depression, anhedonia, was emotionally unstable, was irritable and agitated, had frequent crying spells, and insomnia. The plaintiff had objective findings of a dysphoric mood, depressed affect, tearful appearance, poor focus, and obsessive worry. The plaintiff's diagnoses included major depressive disorder and anxiety disorder, and the first treatment visit for the condition was January 9, 2015. The plaintiff was disabled for regular occupation and any occupation from November 24, 2014, to August 1, 2015. The plaintiff was not suitable for a rehabilitation program and did not have complications that would prolong disability. The plaintiff's sickness did not arise out of the plaintiff's employment and was not due to pregnancy (Tr. 558).
The plaintiff argues that the ALJ erred in his consideration of the opinion evidence from Mr. Friddle/Dr. Smith (doc. 10 at 22-27). As noted, the ALJ provided the opinions from Mr. Friddle/Dr. Smith limited weight (Tr. 991-92). Of note, as outlined above, Mr. Friddle provided a multi-page form regarding the plaintiff's functioning (T r. 555-57), and then Mr. Friddle and Dr. Smith completed a disability form regarding the plaintiff (Tr. 558).
The plaintiff appears to argue that the entire opinion signed by Mr. Friddle should be imputed to Dr. Smith (not just the form signed by both parties) because Dr. Smith was Mr. Friddle's supervising physician; thus, the ALJ erred in finding that it was not opinion evidence from an accepted medical source (doc. 10 at 25 (citing Benton Ex Rel. Benton v. Barnhardt, 331 F.3d 1030, 1038-39 (9th Cir. 2003)). First, the case relied on by the plaintiff for this assertion is not binding authority on this court. Further, the case in question involved whether an opinion from a supervising physician was considered one from a “treating source” for purposes of the treating physician rule when the physician mostly supervised treatment of the claimant in question. Benton Ex Rel. Benton, 331 F.3d at 1035-39. Here, on the other hand, though the ALJ treated Mr. Friddle/Dr. Smith as treating sources, the plaintiff just objects the ALJ's determination that all of Mr. Friddle's opinions did not impute to Dr. Smith to qualify as opinions from an acceptable medical source under the regulations. However, the plaintiff has presented no precedent requiring such an imputation of opinions. Moreover, the plaintiff's reference to SSR 06-03p, arguing that the ALJ should have treated the opinion of Mr. Friddle as being from a non-medical source, likewise provides no support for her argument because the ALJ weighed Mr. Friddle's opinion, despite noting that he was not an acceptable medical source, as required by the applicable regulations (and as set forth in SSR 06-03p).
The plaintiff also argues that the ALJ erred in weighing opinion evidence from Mr. Friddle/Dr. Smith based on Shelly C. v. Commissioner of Social Security Administration, 61 F.4th 341 (4th Cir. 2023) (doc. 10 at 26). While the plaintiff is correct that the Fourth Circuit in Shelly C. recognized the “unique and subjective nature of chronic depression,” the court rejected the ALJ's analysis of opinion evidence because he did not discuss the appropriate factors, relied in part on cherry-picked treatment records, and did not identify the inconsistent evidence he relied on in affording that opinion little weight. See Shelly C., 61 F.4th at 354-59. Here, however, the ALJ provided a detailed analysis of his consideration of the opinion evidence from Mr. Friddle/Dr. Smith based on the applicable factors, and the plaintiff has not identified records that the ALJ ignored/cherry-picked. Moreover, unlike in Shelly C., here, the plaintiff has not argued error with respect to the ALJ's consideration of the plaintiff's subjective complaints; and the ALJ found that the plaintiff's subjective complaints were not consistent with the record evidence (see Tr. 986-89). Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief).
Indeed, as required by the regulations, the ALJ's decision provides a clear evaluation of the opinions of Mr. Friddle/Dr. Smith by examining each of the applicable factors (including a notation that their opinion that the plaintiff was totally disabled was an issue reserved to the Commissioner). For example, the ALJ recognized that the plaintiff had a limited treatment relationship with Mr. Friddle and Dr. Smith because she only treated with Mr. Friddle on four occasions during the course of six months (with one of those visits occurring after the applicable period) and only one of those visits indicated that Dr. Smith consulted about Mr. Friddle's treatment determinations (Tr. 537-41,564-66). As such, the treatment relationship in this case is far different than the one in Shelly C., where the ALJ rejected opinion evidence from a provider that had treated the plaintiff for more than two decades. Shelly C., 61 F.4th at 357. Notably, the plaintiff relies heavily on the opinion evidence from Mr. Friddle/Dr. Smith although the opinion would suggest that the plaintiff's mental impairments did not meet the duration requirement of “at least 12 months” under 20 C.F.R § 404.1509, as they indicated on one form a range from six to twelve months and on another form that the plaintiff would only be disabled for nine months (see Tr. 555, 558).
Moreover, contrary to the plaintiff's assertion, the ALJ did not wholesale adopt the state agency examiners' opinions without evaluation of the opinion evidence proffered by Mr. Friddle/Dr. Smith. Indeed, as noted by the ALJ, Mr. Friddle's treatment records (noting consultation with Dr. Smith on only one occasion) did not support the opined limitations (Tr. 991-92). For example, although Mr. Friddle's examination findings during each of the four treatment visits noted a dysphoric and angry mood with obsessive thought processes, Mr. Friddle noted that the plaintiff had a congruent affect, her sensorium was clear, she was fully oriented, her short and long term memory were intact, her concentration and focus were normal, she had average judgment and insight and fund of knowledge, she ambulated well and had appropriate dress and hygiene, her speech was regular in rate and rhythm, she had no suicidal or homicidal ideation, had no psychosis, was goal oriented towards treatment, and had no gross cognitive deficits (Tr. 538, 540, 564, 565). As noted by the ALJ, these examination findings did not support Mr. Friddle's opinion that the plaintiff would be unreliable, unable to maintain focus to perform tasks, or could not communicate with students and staff appropriately (Tr. 555). Indeed, Mr. Friddle/Dr. Smith indicated on the disability form that the plaintiff's objective findings included dysphoric mood, depressed affect, tearful in office, poor focus, and obsessive worry (Tr. 558), but the treatment records from this office did not include any mention of a depressed affect or poor focus (compare Tr. 558 (noting objective findings of depressed affect and poor focus) with Tr. 538, 540, 564, 565 (noting objective findings of congruent affect and normal concentration and focus)).
Further, as examined by the ALJ, the opinion evidence from Mr. Friddle/Dr. Smith was provided limited weight because it was “contradicted by other substantial evidence in the record.” Arakas, 983 F.3d at 107 (emphasis in original) (citations omitted). For example, as noted by the ALJ, evidence from the plaintiff's other treating providers during the relevant period was inconsistent with disabling mental impairments (Tr. 991-92). The plaintiff argues that remand is required because the ALJ did not identify the inconsistent evidence (doc. 10 at 27); however, the ALJ's decision referenced specific records and noted that opinion evidence from Mr. Friddle/Dr. Smith was not consistent with findings by other providers that the plaintiff had a normal mood and affect; was fully oriented; had an appropriate response to commands; and had no depression, anxiety, mood swings, or hallucinations (Tr. 991-92 (citing Tr. 366-77, 381-88, 517-36, 646-72)). Indeed, as noted above, two of the plaintiff's three treatment visits during the relevant period (other than physical therapy records) noted normal examination findings and included no mention of depression and anxiety (see Tr. 517-20, 646-48). Similarly, as recognized by the ALJ, the plaintiff's neurologist noted that the plaintiff had normal attention, normal calculation for serial sevens, and 3/3 memory recall immediately and after five minutes (Tr. 519). Moreover, the ALJ also noted that the plaintiff's reported ADLs of cooking, cleaning dishes, laundry, dusting, cleaning the kitchen, cleaning the living room, attending church, using social media, texting, emailing, using a computer, driving, shopping for groceries, singing, playing the piano, crafting, reading, and watching television were inconsistent with assertions of disabling mental impairments (Tr. 988-99). In light of the foregoing, the ALJ's evaluation of opinion evidence from Mr. Friddle/Dr. Smith is supported by substantial evidence and should be affirmed.
Dr. Ford and Dr. Lambert
The plaintiff also argues that the ALJ erred in his consideration of the opinion evidence from Drs. Ford and Lambert (docs. 10 at 33; 14 at 7-9). As an initial matter, the undersigned notes that the plaintiff's briefing regarding the treatment of the opinions of Drs. Ford and Lambert, raises the above issues in a perfunctory manner - providing only passing references to the record or other arguments proffered - with very little analysis of the issues raised (see docs. 10 at 33; 14 at 7-9). Courts have held that when a plaintiff raises an issue in a perfunctory manner, the issue is deemed waived. See Jacobus v. Comm'rof Soc. Sec., 664 Fed.Appx. 774, 777 n.2 (11th Cir. 2016) (noting that the plaintiff's “perfunctory argument” was arguably abandoned (citing Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining that simply stating an issue exists, without further argument or discussion, constitutes abandonment of that issue)); Rice v. Comm'r of Soc. Sec., 169 Fed.Appx. 452, 454 (6th Cir. 2006) (finding that issues raised in a perfunctory manner “without elaboration or legal argument” “unaccompanied by some effort at developed argumentation” were deemed waived (internal citations and quotation marks omitted)); Parms v. Colvin, C/A No. 1:13-cv-01002, 2015 WL 1143209, at *8 n.10 (M.D. N.C. Mar. 13, 2015) (noting that the “Court need not address . . . perfunctory arguments by counsel), memorandum and recommendation adopted by doc. 32 (M.D. N.C. Mar. 31, 2015). Indeed, the court is not required to rummage through the administrative record to construct and present a well-supported position for the plaintiff. See Hayes v. Self-Help Credit Union, C/A No. 1:13-cv-00880, 2014 WL 4198412, at *2 (M.D. N.C. Aug. 22, 2014) (noting that “[i]t is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument (internal citations omitted)). Nevertheless, despite the perfunctory nature of the plaintiff's arguments, the undersigned will address the ALJ's evaluation of opinion evidence from Drs. Ford and Lambert.
Dr. Ford
Dr. Ford submitted multiple medical source statements on the plaintiff's behalf. In the medical source statement dated July 21, 2016, Dr. Ford indicated that the plaintiff was his patient and began treating with him on January 8, 2016. The plaintiff's illness began in 2014. Dr. Ford opined that he “currently” found the plaintiff disabled and unable to work (Tr. 775). Dr. Ford submitted another medical source statement on February 22, 2018. Dr. Ford noted that the plaintiff had major depressive disorder single episode severe, social anxiety disorder, and generalized anxiety disorder secondary to a traumatic situation where she was teaching. The plaintiff had two hospitalizations to treat her illness, but continued to have dysphoria, crying spells, anergy, anhedonia, social isolation, withdrawal, insomnia, and appetite disturbance. The plaintiff was frequently incapacitated by her depression, had difficulty with ADLs, and could not leave her house for days at a time. The plaintiff had extreme difficulty being around other people and going out in public. The plaintiff's condition had not improved despite trying different medications and counseling. Dr. Ford opined that the plaintiff was considered disabled and had extreme difficulty in functioning in daily activities (Tr. 956). On March 22, 2018, Dr. Ford submitted a letter requesting that a family member be allowed to accompany the plaintiff to her administrative hearing because of her mental impairments (Tr. 357).
On November 8, 2018, Dr. Ford submitted a letter and questionnaire regarding the plaintiff. Dr. Ford indicated that he continued to treat the plaintiff for major depressive disorder severe, generalized anxiety disorder, and social anxiety disorder. Dr. Ford noted that the plaintiff was still disabled by her depression and anxiety despite her ongoing trials of medications and outpatient counseling. The plaintiff's anxiety prevented her from leaving the house, functioning outside of her home, and caused panic attacks. The plaintiff's depression immobilized her, and she could not perform ADLs (Tr. 1289). The questionnaire attached to the letter indicated that the plaintiff's anxiety, panic attacks, and depression made it extremely difficult for her to concentrate or sustain attention as well as impaired her ability to function. The plaintiff's diagnoses included major depressive disorder severe, social anxiety disorder, and generalized anxiety disorder with panic attacks. Dr. Ford had treated the plaintiff since January 2016. Despite treatment, the plaintiff continued to have severe depression and anxiety with poor response to medication and therapy. Although Dr. Ford began treating the plaintiff in January 2016, he noted that she was hospitalized in 2014 and 2016 for mental health inpatient treatment and was considered disabled since November 24, 2014 (Tr. 1290).
Later that month, on November 27, 2018, Dr. Ford submitted his last medical source statement of record. Dr. Ford indicated that the plaintiff had severe major depressive disorder, social anxiety disorder, and generalized anxiety disorder. Dr. Ford indicated that the plaintiff's anxiety made it difficult for her to interact with anyone and she exhibited hypervigilance looking for potential harms to an unrealistic extent. The plaintiff could not handle criticisms, which would make it difficult for her to interact with supervisors, and she had a difficult time dealing with the general public. The plaintiff tried to work at a seamstress shop, but she was unsuccessful due to her condition. Dr. Ford opined that the plaintiff would have trouble with attention and concentration sufficient to interrupt tasks more than 15% of the workday. The plaintiff's disability existed since November 2014, and the plaintiff was “one of the most disabled people in the clinic” (Tr. 1292).
The ALJ evaluated the opinions offered by Dr. Ford and afforded them limited weight, although he provided great weight to the social isolation and withdrawal opinions proffered by Dr. Ford (Tr. 989-91). Here, the plaintiff's perfunctory briefing appears to only challenge the ALJ's determination that Dr. Ford's opinions were inconsistent with other record evidence (except for the social isolation and withdrawal opinions provided great weight) (docs. 10 at 33; 14 at 7-8). The undersigned finds the plaintiff's assertion unavailing. The ALJ provided a clear evaluation of Dr. Ford's opinions by examining each of the applicable factors (including a notation that Dr. Ford's repeated assertion that the plaintiff was totally disabled was an issue reserved to the Commissioner). For example, the ALJ recognized that Dr. Ford was a psychiatrist, but noted that the plaintiff's treatment relationship with Dr. Ford began in January 2016, well after the relevant period (Tr. 989-90). The ALJ also examined the plaintiff's limited treatment relationship with Dr. Ford in affording his opinions limited weight, because Dr. Ford only treated the plaintiff a handful of times over the course of two years, and all of the treatment visits occurred well after the relevant period (Tr. 990). As such, the ALJ found Dr. Ford's opinions of limited probative value as Dr. Ford did not examine the plaintiff during the relevant period (Tr. 989-91).
For ease of reference, the undersigned will refer to Dr. Ford's opinions as a whole during this analysis, although the analysis does not apply to the social isolation and withdrawal opinions that were afforded great weight.
In assigning Dr. Ford's opinions limited weight, the ALJ found that Dr. Ford's opinions were not supported by his treatment notes (Tr. 990). For example, as noted by the ALJ, upon presentment on January 14, 2016, although examination findings noted that the plaintiff was anxious, guarded, and resistant; her eye contact was fidgety and restless with frequent bouncing of her right leg; she had a depressed anxious mood; an anxious depressed appropriate affect; and a mild impairment distractible in attention and concentration, she was also noted as having normal speech, intact associations, and logical/goal directed thought process; she denied delusions, suicidal ideation, homicidal ideation, obsessions, or hallucinations; and she was alert and fully oriented, had intact recent and remote memory, had above average language and fund of knowledge, and had good judgment and insight (Tr. 776-77). The plaintiff continued treating sporadically with Dr. Ford, and although she experienced exacerbations in symptoms on occasion, Dr. Ford attributed at least some of those exacerbations as secondary to tapering her medicines too abruptly (Tr. 778-83, 787-800). For example, despite reporting increased symptoms on March 24, 2016, medication monitoring on April 19, 2016, indicated that the plaintiff's medications were working and the only symptoms she reported were decreased appetite, anxiety, and depression (Tr. 784). Additionally, although Dr. Ford opined that the plaintiff would be off task 15% of the workday and could not concentrate or pay attention (Tr. 1290, 1292), his examination findings indicated that the plaintiff had only a mild impairment (distractible), not a moderate or severe impairment, and on two occasions, the plaintiff had intact attention and concentration (Tr. 776-83, 787-800). As noted by the ALJ, these examination findings did not support Dr. Ford's opined limitations.
Similarly, the ALJ noted record evidence that was inconsistent with Dr. Ford's opinions. For example, as outlined above, the ALJ noted that the limited treatment records from the relevant period noted that the plaintiff was oriented times three, had normal concentration and focus, had no cognitive deficits, had an intact memory, no psychosis, and had appropriate dress and hygiene (Tr. 990). Indeed, as referenced by the ALJ, Dr. Sida, the plaintiff's neurologist, indicated that the plaintiff had no memory deficits, normal calculation of serial sevens, and no attention deficits after testing (Tr. 517-20) The ALJ went on to note record evidence postdating the relevant period (but contemporaneous to Dr. Ford's opinions) that was inconsistent with Dr. Ford's opinions, including treatment records from Dr. Lambert that noted relatively benign examination findings and reports from the plaintiff that her condition was stabilizing (Tr. 1614-19, 1622-24, 1628-30, 1633-35, 1639-41, 1644-47, 1650-52) as well as records from the Abbeville Medical Center noting that the plaintiff reported that her depression and anxiety were stable as well as examination findings noting that the plaintiff was alert, pleasant, interactive, fully oriented, had a normal mood and affect, and was pleasant (Tr. 991 (citing 1654-1745)). In light of the foregoing, the ALJ's evaluation of opinion evidence from Dr. Ford is supported by substantial evidence and should be affirmed.
Dr. Lambert
Dr. Lambert also submitted a medical source statement for the plaintiff on October 21, 2021. Dr. Lambert indicated that he first treated the plaintiff during her inpatient treatment in 2014 and 2016 (after she had a second hospitalization) and began treating her at the outpatient clinic in 2021. Dr. Lambert indicated that the plaintiff had not shown improvement between 2014 and 2016 despite trying multiple treatment strategies. Dr. Lambert opined that the plaintiff would miss more than three days per month of work and would be “incapable of anything resembling marginal functioning more than 15% of any given workday.” Dr. Lambert indicated that the limitations existed since his first encounter with the plaintiff in 2014 “per her own report, which [he had] no reason to question” (Tr. 1747-48).
The ALJ evaluated the opinion offered by Dr. Lambert and afforded it limited weight (Tr. 995-96). Here, the plaintiff's perfunctory briefing, again, appears to only challenge the ALJ's determination that Dr. Lambert's opinion was inconsistent with other record evidence (docs. 10 at 33; 14 at 8-9). The undersigned finds the plaintiff's assertion unavailing. Here, as above, the ALJ provided a clear evaluation of Dr. Lambert's opinion by examining each of the applicable factors. For example, the ALJ recognized that Dr. Lambert was a board certified psychiatrist, but noted that the majority of the plaintiff's treatment relationship with Dr. Lambert occurred well after the relevant period, in 2021 -other than during the plaintiff's inpatient treatment during November 2014 (Tr. 995-96). The ALJ also examined Dr. Lambert's limited treatment relationship with the plaintiff in affording his opinion limited weight, because Dr. Lambert treated the plaintiff during inpatient treatment in 2014 (the only visit during the relevant period) and 2016 (upon discharge from inpatient treatment) and then began outpatient treatment of the plaintiff in 2021 (Tr. 995-96). As such, the ALJ found Dr. Lambert's opinion of limited probative value as Dr. Lambert's treatment of the plaintiff mostly occurred after the relevant period (Tr. 995-96).
In assigning Dr. Lambert's opinions limited weight, the ALJ also found that Dr. Lambert's opinions were not supported by his treatment notes (Tr. 995-96). For example, as noted by the ALJ, when Dr. Lambert discharged the plaintiff from inpatient care on November 28, 2014, she had a brightened mood, her self-destructive ideation had totally abated, and she had benign examination findings (Tr. 452-54). The ALJ noted that this one treatment note from the relevant period did not support Dr. Lambert's opinion that the plaintiff would miss work more than three days a month and could not function more than 15% of the workday (Tr. 995-96). Similarly, the ALJ noted that Dr. Lambert's opinion was also not supported by treatment records outside the relevant period, such as notes from when Dr. Lambert evaluated the plaintiff on discharge from inpatient care in March 2016, noting that the plaintiff's mood “improved quite rapidly” and she had normal examination findings (Tr. 680-81). Treatment records from Dr. Lambert when he began treating the plaintiff in 2021 likewise noted that the plaintiff was casually groomed; had good eye contact; was fully alert and oriented; had generally intact memory; had normal concentration and attention; had “at least average” intellectual functioning; had an appropriate affect; had a depressed mood; utilized soft and non-pressured speech; had no suicidal or homicidal ideation; had no delusional thinking, hallucinations, or internal stimuli; had thoughts that showed no incoherence, derailment, or disorganization; had good insight and judgment; but her psychomotor was neutral to minimally retarded (Tr. 1616). Although the plaintiff had exacerbation of symptoms on one occasion secondary to a health scare involving her husband, the remainder of Dr. Lambert's treatment notes recorded similarly benign examination findings (Tr. 1622-24, 1628-30, 1633-35, 1639-41,1644-47). Indeed, during the visit on July 7, 2021, Dr. Lambert noted that the plaintiff had no neurovegetative depressive symptoms (Tr. 1640). As noted by the ALJ, these findings appear in contrast to Dr. Lambert's opinion that the plaintiff could not function for more than 15% of any given workday and would miss three days of work per month.
The ALJ also afforded Dr. Lambert's opinion little weight based on its inconsistencies with other record evidence. For example, as outlined above in detail, the treating notes from other providers during the relevant period and postdating the date last insured noting relatively benign examination findings were inconsistent with Dr. Lambert's opinion that the plaintiff would miss more than three days of work per month and could only marginally function 15% of the day. See supra pp. 21-22 (discussing other record evidence inconsistencies). Similarly, the ALJ noted that the plaintiff's ability to open, operate, and run a small business for eight months (which Dr. Ford's records indicated she closed secondary to an ankle injury and not her mental impairments) was inconsistent with Dr. Lambert's opinions about the plaintiff's ability to function.
As outlined above, the ALJ appropriately explained the weight provided to the opinions of Mr. Friddle/Dr. Smith, Dr. Ford, and Dr. Lambert. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the undersigned finds that the ALJ's evaluation of the opinion evidence is based upon substantial evidence, without legal error, and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
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
250 East North 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).