Opinion
No. 7:19-CV-197-D
08-04-2020
KALLIE BLANCHARD, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-16, -18] pursuant to Fed. R. Civ. P. 12(c). Claimant Kallie Blanchard ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). Claimant responded to Defendant's motion, and the time for filing a reply has expired. [DE-20]. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on June 3, 2016, alleging disability beginning November 1, 2015. (R. 10, 168-69). Her claim was denied initially and upon reconsideration. (R. 10, 59-85). A hearing before the Administrative Law Judge ("ALJ") was held on March 21, 2018, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 10, 32-58). On September 21, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 7-24). On August 1, 2019, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred in: (1) weighing the medical opinion of Dr. David Joseph, (2) ignoring facts that contradicted the ALJ's conclusions, and (3) finding that Claimant's statements were inconsistent with periods of medication non-compliance. Pl.'s Mem. [DE-17] at 9-18.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment from November 1, 2015, the alleged onset date, to March 31, 2017, the date last insured. (R. 12). Next, the ALJ determined Claimant had the following severe impairments: bipolar I disorder; major depressive disorder, post-traumatic stress disorder ("PTSD"); borderline personality disorder; and schizoaffective disorder. Id. The ALJ also found Claimant had nonsevere impairments of cholelithiasis, MRSA infection, and obesity. (R. 12-13). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 13-14). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a full range of work at all exertional levels requiring the following non- exertional limitations:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). "Occasionally" generally totals no more than about 2 hours of an 8-hour workday. "Sitting" generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying objects weighing up to 25 pounds. If someone can do medium work, she can also do sedentary and light work. 20 C.F.R. § 404.1567(c).
She is limited to performing simple, routine and repetitive tasks. She is able to interact with, and respond appropriately to, supervisors frequently. She can interact with, and respond appropriately to, coworkers occasionally, which is further defined as no tandem or teamwork type activities. She can never interact with, or respond appropriately to, the general public, except for superficial contact. She is limited to occasional changes to a low stress work setting which is further defined as being one that is not based in production, such as no assembly line work, and only requires decision making involving simple routine tasks.(R. 14-18). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence. (R. 16).
At step four, the ALJ concluded Claimant has no past relevant work. (R. 18). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined that through the date last insured, Claimant was capable of adjusting to the demands of other employment opportunities that existed in significant numbers in the national economy. (R. 19-20).
V. DISCUSSION
A. The ALJ did not err in weighing the medical opinion of Dr. Joseph.
Claimant contends the ALJ erred in giving partial weight to Dr. Joseph's opinion. Pl.'s Mem. [DE-17] at 9-13. When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 404.1527(c)(2).
The rules for evaluating opinion evidence for claims filed after March 27, 2017 are found in 20 C.F.R. § 404.1520c, but 20 C.F.R. § 404.1527 still applies in this case. --------
When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" it is given controlling weight. Id. However, "[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig, 76 F.3d at 590. If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527).
Dr. Joseph completed a Mental Medical Source Statement on September 20, 2016. (R. 413-18). He noted that Claimant has PTSD and schizoaffective disorder, bipolar type, and she has a poor support system, transportation issues, financial strain, housing problems, and occupational problems. (R. 413). In a "treatment and response" field, Dr. Joseph wrote: "Gradual improvement on the meds and with support." Id. He identified Claimant's symptoms by checking boxes on a list, and he also completed a check-box form indicating Claimant's mental abilities and aptitudes needed to work. (R. 414-15). On that form, Dr. Joseph checked boxes indicating that Claimant was "unable to meet competitive standards" in every category except "Be aware of normal hazards and take appropriate precautions" and "Interact appropriately with the general public," in which Claimant was "seriously limited, but not precluded." (R. 415-16). Dr. Joseph indicated that stress tolerance was an issue for Claimant, and he anticipated that she would be absent from work more than four days per month. (R. 417).
The ALJ gave partial weight to Dr. Joseph's opinion and explained her reasoning as follows:
This document is primarily a "check box" form in which Dr. Joseph largely considered the claimant "unable to meet competitive standard" in her mental abilities. However, this assessment conflicts with Dr. Joseph's treatment notes in which improvement is noted when the claimant complies with medication. The claimant is generally described as alerted, oriented and stable in those records and there is no evidence of significant memory or concentration issues in them. The treatment records provide a more reliable source for assessing the claimant's mental functioning and the residual functional capacity is consistent with what is reflected there. (Exhibit 4F).(R. 18).
First, Dr. Joseph's opinion was a check-box form, and "[a]n ALJ is entitled to give a form opinion less weight than a narrative opinion." Court v. Saul, No. 4:18-CV-201-RJ, 2019 WL 4415145, at *5 (E.D.N.C. Sept. 16, 2019); see also Schaller v. Colvin, No. 5:13-CV-334-D, 2014 WL 4537184, at *16 (E.D.N.C. Sept. 11, 2014) ("[S]ince the opinion is in the form of a questionnaire, the ALJ was entitled to assign it less weight than a fully explanatory and narrative opinion because such form opinions do not offer adequate explanation of their findings."); Whitehead v. Astrue, No. 2:10-CV-35-BO, 2011 WL 2036694, at *9-10 (E.D.N.C. May 24, 2011) (determining that a check-box form completed by a treating physician was not entitled to controlling weight where it was inconsistent with the physician's own treatment notes and gave no explanation or reasons for the findings). However, as Claimant contends, the format of the opinion alone is an insufficient reason to discount it. See Thomas v. Berryhill, No. 4:16-CV-15-D, 2017 WL 1047253, at *8 (E.D.N.C. Feb. 15, 2017) ("Dawson's review is contained on a form with check boxes, but Dawson also provided additional notations regarding Thomas's treatment and status. Moreover, check-boxes forms are regularly used by both providers and consultants in the disability determination process. Thus, the format alone is not a reasonable basis to dismiss Dawson's assessment." (citations omitted)), adopted by 2017 WL 1049472 (E.D.N.C. Mar. 17, 2017).
The ALJ offered a second reason to give Dr. Joseph's opinion partial weight, writing that the opinion is inconsistent with Dr. Joseph's own treatment notes. (R. 18). On June 6, 2016, Dr. Joseph evaluated Claimant and observed that she "appears friendly, attentive, communicative, . . . and relaxed." (R. 406). Her speech was normal, but she exhibited "signs of mild depression;" her demeanor was sad, and she had a depressed mood. Id. Dr. Joseph wrote, "There are no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process. Associations are intact, thinking is logical, and thought content appears appropriate." Id. Her associations, thought content, cognitive functioning, fund of knowledge, and short- and long-term memory were intact. Id. Dr. Joseph noted that her behavior was "cooperative and attentive." Id. He adjusted her medication, noting that antidepressants have "cause[d] her to feel homicidal according to her statements." (R. 406-07). On July 7, 2016, Dr. Joseph noted that Claimant "reported that she may be pregnant," and they "[d]iscussed risk vs benefits about the medications," including "possibly not using any meds during the first trimester and then using more during the second and third trimester." (R. 412). On July 27, 2017, Dr. Joseph noted that Claimant "denied any symptoms or side effects." (R. 438). Claimant did "not feel the meds are working," but she was "under a lot of stress" after a conflict with her boyfriend and his family. Id. She planned to move to a friend's home three or four hours away "so she does not have to go to the hospital," but she reported that she wanted to stay "because she likes everyone she has met on her treatment team." Id.
The court can trace the ALJ's reasoning in concluding that Dr. Joseph's treatment notes appear inconsistent with his restrictive opinion. "An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ' specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion." Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). The ALJ sufficiently discussed the weight given to Dr. Joseph's opinion, and she did not err.
B. The ALJ erred in failing to sufficiently discuss facts that contradict her conclusions.
Claimant contends the ALJ improperly failed to discuss facts that contradict her decision. Pl.'s Mem. [DE-17] at 13-17. "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of non-disability while ignoring evidence that points to a disability finding." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Further, "[t]he ALJ's failure to 'build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error." Id. at 868 (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)).
First, Claimant contends the ALJ mischaracterized evidence showing Claimant's improvement with medication. Pl.'s Mem. [DE-17] at 14. The ALJ concluded that "[w]ith medication, the mental health status exams would indicate the ability to perform activities within the" RFC, and the ALJ further wrote that Dr. Joseph's notes show "improvement . . . when the claimant complies with medication." However, on June 6, 2016, Dr. Joseph noted that Saphris was causing Claimant "too much sedation and no further help with the anger and anxiety" and that all antidepressants have caused Claimant to feel homicidal. (R. 406-07). On July 7, 2016, Dr. Joseph discussed symptoms, medications, and side effects with Claimant, but he did not specify what the side effects were. (R. 412). They also discussed stopping medication during the first trimester of Claimant's pregnancy. Id. In his medical source statement to which the ALJ afforded partial weight, Dr. Joseph did write that Claimant has "gradual improvement on the meds and with support." (R. 413). However, as noted above, the medical source statement is not supported by Dr. Joseph's own treatment notes. On July 27, 2016, Dr. Joseph noted that Claimant "does not feel the meds are working, but is under a lot of stress." (R. 438). In summary, the only indication in Dr. Joseph's treatment records that Claimant improved with medication is the medical source statement to which the ALJ gave partial weight precisely because it was inconsistent with Dr. Joseph's other treatment records. The other records from Dr. Joseph do not indicate that Claimant improved with medication. Accordingly, the court cannot trace the ALJ's reasoning in concluding that "[w]ith medication, the mental health status exams would indicate the ability to perform activities within the" RFC. (R. 18).
Second, Claimant contends the ALJ erred in finding that "there is no record of the claimant receiving mental health treatment after her release from inpatient care." (R. 16); Pl.'s Mem. [DE-17] at 14-15. Inconsistently, the ALJ then proceeds to describe Claimant's mental health treatment after her inpatient care. (R. 17-18). The ALJ wrote:
Subsequent to her release from inpatient care, the claimant sought treatment with Coastal Southeastern United Care. She reported irritability, sleep disturbance, depression, rapid speech, auditory hallucinations, decreased interest, and antisocial behavior. . . . She was evaluated by Dr. David Joseph of Coastal Southeastern in June and reported that her symptoms were worsening. . . .
In November 2016 the claimant was again admitted for inpatient treatment after expressing suicidal thoughts after an altercation with her mother. . . .
The claimant continued treatment from Southeastern in November and December 2016 [and January through July 2017]. . . .
In August 2017 the claimant was again hospitalized, this time after trying to hurt
herself. . . .Id. It is not clear whether the ALJ's statement regarding Claimant's inpatient care refers to her August 2015, November 2016, or August 2017 hospitalizations. However, the record shows and the ALJ summarizes that Claimant continued to receive treatment after each of those hospitalizations. Accordingly, the court cannot trace the ALJ's reasoning in concluding that "[t]here is no record of the claimant receiving mental health treatment after her release from inpatient care." (R. 16).
In September she reported losing her temper and throwing a toolbox at her boyfriend after she forgot to take her medication. In October she denied depression, anxiety, recent outbursts and ideations. She reported medication compliance. She continued to appear stable, alert and oriented in November and again reported no depression or symptoms. (Exhibit 5f).
Third, Claimant contends the ALJ did not consider the variability of Claimant's course of treatment over the longitudinal record. Pl.'s Mem. [DE-17] at 15-16. Claimant's arguments relate to her medications, and, as discussed below, the ALJ erred in discussing Claimant's medication noncompliance over the longitudinal record.
C. The ALJ erred in discussing Claimant's medication noncompliance.
Claimant contends that the ALJ erroneously relied on her medication noncompliance to discount her testimony without considering why she was noncompliant. Pl.'s Mem. [DE-17] at 16-18. The ALJ wrote:
The claimant has had multiple hospital admissions for suicidal ideation but her exacerbations of depression symptoms are consistently associated with non-compliance with her medications. These episodes have be[e]n intermittent and would not result in excessive absences or time on task on a consistent basis that would prevent competitive employment. With medication, the mental health status exams would indicate the ability to perform activities within the residual functional capacity.(R. 18).
The ALJ must "consider and address reasons for not pursuing treatment that are pertinent to an individual's case," including whether a claimant is unable to afford treatment and lacks access to free or low-cost medical services. S.S.R. 16-3p, 2016 WL 1119029, at *10; see Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) ("It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him"). "The inability to afford medical treatment is a sufficient reason for medication noncompliance." Taylor v. Astrue, No. 7:11-CV-162-FL, 2012 WL 3637254, at *6 (E.D.N.C. Aug. 1, 2012) (citing S.S.R. 96-7p, 1996 WL 374186, at *7-8), adopted by 2012 WL 3636923 (Aug. 22, 2012); see Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (holding that a claimant's inability to afford medication cannot be used as basis for denying benefits).
On October 30, 2017, Claimant's treating provider asked her if she had picked up the medication that had been prescribed in early September. (R. 422). Claimant reported that "she had not yet picked up medications from [the] pharmacy[] but planned to obtain [them] next month when she received her check." Id. The next month, on November 27, 2017, Claimant reported an inability to pay a copay for her medication. (R. 421). Additionally, on July 7, 2016, Claimant and Dr. Joseph discussed the possibility of not using medication during the first trimester of her pregnancy. (R. 412). Claimant also contends that her failure to take her medications was the result of her Bipolar I disorder. Pl.'s Mem. [DE-17] at 16-17. The ALJ did not consider Claimant's inability to pay for her medication, her pregnancy, or her mental health in discussing her medication non-compliance. On remand, the ALJ should consider the reasons Claimant was noncompliant with her medication, including her inability to pay. See Cumbee v. Berryhill, No. 7:16-CV-415-BO, 2018 WL 1189466, at *5 (E.D.N.C. Mar. 7, 2018) ("non-compliance with a treatment regimen due to inability to pay cannot be held against a claimant") (citations omitted).
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-16] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-18] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 18, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir.
1985).
Submitted, this the 4th day of August 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge