Opinion
C. A. 2:20-cv-02167-RBH-MGB
12-13-2021
RHONDA CORINE BURTON, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Rhonda Corine Burton ("Plaintiff), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff filed an application for SSI on October 24, 2013, alleging a disability onset date of January 1, 1998. (R. at 12, 654.) Plaintiff claimed disability due to, inter alia, chronic back pain, depression, and diabetes. (R. at 191.) Plaintiff has a limited education and no past relevant work. (R. at 672.) Her application was denied initially and on reconsideration. (R. at 12.) After a hearing before an Administrative Law Judge ("ALJ") on November 4, 2015, the ALJ issued a decision on May 26, 2016, in which the ALJ found that Plaintiff was not disabled. (R. at 12-29.)
After the Appeals Council declined the request for review, Plaintiff filed an action in the United States District Court for the District of South Carolina. On January 17, 2019, the District Court remanded the action for further proceedings. (R. at 739-50). The Court indicated remand was appropriate because "it is simply unclear whether the ALJ considered the effect of Plaintiff s combined impairments." (R. at 748.) The Court found this error was not harmless "because Plaintiff suffered from several severe impairments which, when combined, could impact the RFC assessment." (R. at 748.) Based on the District Court's Order, the Appeals Council vacated the ALJ's decision and remanded the case on March 4, 2019. (R. at 752-55.) A hearing was held on January 8, 2020, before a different ALJ. (R. at 654.) On March 30, 2020, the ALJ issued a decision finding Plaintiff was not disabled. (R. at 654-73.) The March 30, 2020 decision is the Commissioner's final decision for purposes of judicial review.
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 has not engaged in substantial gainful activity since October 24, 2013, the application date (416.971 etseq.).
(2) The claimant has the following severe impairments: obesity, gastroparesis, degenerative disc disease of the lumbar spine status post fusion, anxiety, panic disorder, and major depressive disorder (20 CFR 416.920(c)).
(3) 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 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work
as defined in 20 CFR 416.967(a) except occasionally climbing stairs and ramps; never climbing ladders, ropes and scaffolds; occasionally stooping, kneeling, crouching and crawling; avoiding concentrated exposure to hazards, fumes, odors, dusts, and gases, and temperature extremes; able to alternate between sitting and standing once every 30 minutes for 5 to 10 minutes at a time without increasing time off task; able to perform and sustain unskilled work, which is defined as no more than SVP 2 or RL2, for two-hour increments followed by customary breaks; and occasionally interact with the general public
(5) The claimant has no past relevant work (20 CFR 416.965).
(6) The claimant was born on October 26, 1971 and was 42 years old, which is defined as a younger individual age 18-44, on the date the application was filed. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 416.963).
(7) The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, from October 24, 2013, the date the application was filed (20 CFR 416.920(g)).(Rat 654-73.)
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. § 13 81 etseq. "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." 42 U.S.C. § l382c(a)(3)(A).
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 Social Security 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 him from doing substantial gainful employment. 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4thCir.2Ol8);, 4ra*as v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 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); Bird v. Comm 'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
"Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion." Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson, 810 F.3d at 207 (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]." Craig v. Chafer, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled," the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not "reflexively rubber-stamp an ALJ's findings." Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs "must 'build an accurate and logical bridge' from the evidence to their conclusions." Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ's decision is not supported by substantial evidence. More specifically, Plaintiff alleges that: (1) the ALJ erred in her assessment of the opinion evidence from treating physicians and other sources; (2) the ALJ failed to consider the combined effect of Plaintiffs impairments; and (3) the ALJ's assessment of Plaintiff s residual functional capacity ("RFC") is not supported by substantial evidence. (Dkt. No. 16.) The undersigned considers these arguments below.
A. ALJ Decision
The ALJ's decision considers whether Plaintiff was disabled from October 24, 2013, the date Plaintiff filed her application for SSI, through March 30, 2020, the date the ALJ issued her decision. In her decision, the ALJ found that Plaintiff had the following severe impairments: "obesity, gastroparesis, degenerative disc disease of the lumbar spine status post fusion, anxiety, panic disorder, and major depressive disorder." (R. at 656.) She found that Plaintiffs "loss of central visual acuity, diabetes mellitus, obstructive sleep apnea, emphysema, and degenerative joint disease of the knees have had no more than a minimal effect on her ability to perform basic work activities and are therefore considered nonsevere impairments." (R. at 656.) The ALJ followed a special analysis to assess Plaintiffs alleged mental impairment at step two. Specifically, the ALJ rated the degree of functional limitation in four broad categories, known as the "paragraph B" criteria, which include: (1) understanding, remembering, or applying information; (2) interacting with others; (3) maintaining concentration, persistence, or pace; and (4) adapting or managing oneself. 20 C.F.R. § 4l6.92Oa(c). The ALJ assessed a mild limitation in understanding, remembering, or applying information; a moderate limitation in interacting with others and in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing oneself. (R. at 658.) The ALJ noted that her RFC assessment "reflects the degree of limitation... found in the 'paragraph B' mental function analysis." (R. at 659.) The ALJ also noted that she was required to perform "a more detailed assessment of the areas of mental functioning" at the RFC stage. (R. at 659.)
A claimant is not eligible for SSI until the date on which she files an application for benefits. 20 C.F.R. § 416.202; see also 20 C.F.R. § 416.501 (stating that a claimant may not be paid SSI for any time period that precedes the first month following the date on which an application was filed); see also Torresv. Chater, l25F.3d 166, 171 n.l (3dCir. 1997) (noting that SSI benefits are not payable for any period prior to the filing of an application). Further, an application for benefits remains in effect until the date of the ALJ's decision. 20 C.F.R. § 416.330; see also Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (holding that a reviewing court is limited to determining "whether the claimant was entitled to benefits during a specific period of time, which period was necessarily prior to the date of the ALJ's decision").
The ALJ then found that Plaintiff has the RFC to sedentary work with certain limitations. (R. at 659.) In support of her RFC assessment, the ALJ extensively discussed Plaintiffs subjective statements, treatment records and diagnostic evidence, consultative examination records, and opinion evidence. (R at 662-71.) After considering Plaintiffs RFC and the vocational expert's testimony, the ALJ found that Plaintiff can perform work that exists in significant numbers in the national economy. (R. at 672-73.) The ALJ therefore concluded that Plaintiff has not been disabled since she filed her application on October 24, 2013. (R. at 673.)
B. RFC Assessment and Opinion Evidence
Plaintiff argues that the ALJ erred in her assessment of the opinion evidence from Plaintiffs: (1) treating physician, Leah S. Trantham, M.D.; (2) treating gastroenterologist, Marc D. New, M.D; and (3) mental health counselor, Devin Black, B.S. (Dkt. No. 16 at 18-22. According to Plaintiff, these individuals all agreed that Plaintiff is incapable of sustaining regular work. (Id. at 21-22.) Plaintiff contends that the ALJ erred in failing to account for this opinion evidence in her RFC finding.
1. Standards
A claimant's residual functional capacity ("RFC") represents the most she can still do despite her limitations. Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). In reaching a determination regarding a claimant's RFC, the ALJ is obligated to consider "all of the relevant evidence in the case record," including any medical source statements submitted by the claimant's treating source(s) and/or other acceptable medical sources. SSR 96-8P, 1996 WL 374184 (July 2, 1996);; see also 20 C.F.R. § 416.927. Indeed, 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. § 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 impairments) 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. § 416.927(c)(2).
The Social Security Administration has amended the "Treating Physician Rule," effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.152Oc(a), (c)(1)-(2). Because Plaintiffs claim was filed before the effective date of the change, the decision is reviewed under the regulation in effect at that time, 20 C.F.R. § 404.1527.
The Fourth Circuit has recently reiterated the treating physician rule in Arakas v. Commissioner, explaining 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." 983 F.3d at 107 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). If a treating physician's opinion is not accorded controlling weight, it still must be evaluated and weighed "pursuant to 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). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 416.927(c)(6). "While 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, 986 F.3d at 385 (citing, e.g., Arakas, 983 F.3d at 107 n. 16 (emphasis in original).) The Arakas Court observed that "SSR 96-2p further notes that '[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'" Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p). A "treating physician's testimony is ignored only if there is persuasive contradictory evidence." Id. (emphasis in original) (quoting Coffinan, 829 F.2d at 518).
SSR 96-2P was rescinded effective March 27, 2017 as part of the amendment of the "Treating Physician Rule." SSA-2012-0035, 2017 WL 3928298. However, it was in effect at the time the Plaintiff filed her claim.
Relatedly, mental health counselors do not constitute an "[a]cceptable medical source[]" under the regulations, but rather an "other source." SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (providing that "only 'acceptable medical sources' can give [the SSA] medical opinions . . . [and] can be considered treating sources . . . whose medical opinions may be entitled to controlling weight"). Nevertheless, the ALJ must still evaluate statements from "other sources" under the factors set forth in 20 C.F.R. § 416.927(c). See SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996) (noting that ALJs "must weigh medical source statements . . . [and] provid[e] appropriate explanations for accepting or rejecting such opinions").
Although SSR 6-3p was rescinded for claims filed on or after March 27, 2017, Plaintiffs application was filed prior to this date and, thus, SSR 06-03p is applicable to the instant case.
Although SSR 96-5p was rescinded for claims filed on or after March 27, 2017, Plaintiff's application was filed prior to this date and, thus, SSR 96-5p is applicable to the instant case.
2. Dr. Trantham, Treating Physician
In her decision, the ALJ detailed Plaintiffs treatment records with Dr. Trantham and assessed the opinions provided by Dr. Trantham. (R. at 663-69.) Plaintiff disputes the ALJ's assessment of Dr. Trantham's November 2014 medical source questionnaire regarding Plaintiffs physical limitations. (Dkt. No. 16 at 20-21.) As acknowledged by Plaintiff, the ALJ's decision recounted Dr. Trantham's restrictions including, inter alia, that Plaintiff "could never lift, carry, push or pull"; "could sit for 1 hour at a time and a total of 2 hours in an 8-hour day"; "was unable to do any activity and had to lie down on her side due to pain"; and "could never operate foot controls, stoop, kneel, crouch, crawl, or climb." (R. at 668.) The ALJ assessed this opinion as follows:
The undersigned has considered Dr. Trantham's opinion and accorded it limited weight. While this opinion is based on a treating relationship with the claimant, the severe limitations described are not generally consistent with the relatively mild physical findings documented in Dr. Trantham's treatment records overtime. However, this opinion is given some weight in finding that the claimant is limited to a restricted range of work at the sedentary exertional level.(R. at 668.)
Here, Plaintiff asserts that in making this assessment, the ALJ ignored evidence of severe findings in Plaintiffs visits with Dr. Trantham in September and October of 2014. (Dkt. No. 16 at 20.) Specifically, during the September 2014 visit Dr. Trantham noted, inter alia, "On examination, the claimant appeared to be in moderate emotional distress. She was ill-appearing, anxious, and tearful. There were diminished breath sounds throughout her lungs. Musculoskeletal exam was difficult due to the claimant's morbid obesity, but she exhibited mild discomfort on flexion and extension of the knees. There was pitting edema of the lower extremities, decreased dorsalis pedis, and decreased sensation over the feet bilaterally." (R. at 666; see also R. at 576-77.) During the October 2014 visit, Dr. Trantham noted, inter alia, "On examination, the claimant was emotionally upset, stating that she was homeless. She appeared ill and uncomfortable due to pain. She had a raspy voice and diminished breath sounds. Her abdomen was distended and she had paraspinal muscle spasm bilaterally. She appeared anxious and depressed." (R. at 666; see also 573-74.) While the ALJ discounted Dr. Trantham's November 2014 opinion because "the severe limitations described are not generally consistent with the relatively mild physical findings documented in Dr. Trantham's treatment records over time," the ALJ only detailed one treatment record that could reasonably be interpreted as documenting "mild physical findings." (R. at 668.)
Specifically, during a July 2015 visit, Dr. Trantham noted, "Although she remained morbidly obese and anxious, the claimant generally appeared well and was in no acute distress. She was depressed but consolable. Examination was otherwise unremarkable." (R. at 669.) Notably, in discounting Dr. Trantham's opinion, the ALJ did not cite any specific treatment records to support her assessment. (R. at 666.) Upon review, the undersigned cannot find that the one July 2015 treatment record summarized by the ALJ provides substantial evidence to support the ALJ's finding that Dr. Trantham's treatment records document "relatively mild physical findings . . . overtime." (R. at 668.)
Further, the consistency of the opinion "with the record as a whole" is one of the factors that must be evaluated by the ALJ where the treating physician's opinion is not accorded controlling weight. 20 C.F.R. § 416.927(c)(4). Here, the ALJ did not offer any analysis of whether Dr. Trantham's opinion was consistent with the other evidence in the record. As discussed below,
Plaintiffs treating gastroenterologist also assessed significant limitations, and Plaintiffs subjective statements supported the limitations opined by Dr. Trantham. Without any discussion by the ALJ on the consistency factor, there is no basis to find that the ALJ meaningfully considered each of the factors under § 416.927 before deciding how much weight to give Dr. Trantham's opinion. See Dowling, 986 F.3d at 385 ("While 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."). Indeed, the ALJ failed to cite specific persuasive contradictory evidence when declining to give this treating physician's opinion controlling weight.
For these reasons, the undersigned cannot find the ALJ's decision to discount Dr. Trantham's November 2014 opinion and her resulting failure to include all of Dr. Trantham's opined limitations in the RFC finding is supported by substantial evidence. See Lawton v. Kijakazi, No. 2:20-CV-03862-RMG-MGB, 2021 WL 5568181, at *6 (D.S.C. Nov. 15, 2021) (remanding in part "[b]ecause the ALJ did not explain how the treatment records of Dr. Hutchinson and Dr. Louis failed to support their opinions"), adopted by, 2021 WL 5567862 (D.S.C. Nov. 29, 2021); Pickhardt v. Saul, No. 2:20-CV-00779-JMC-MGB, 2021 WL 2813625, at *7 (D.S.C. May 7, 2021) (remanding for consideration of treating physician opinion in part because the ALJ failed to adequately evaluate the consistency of the opinion with the record), adopted by, 2021 WL 2328036 (D.S.C. June 8, 2021); Dockery v. Saul, No. 5:20-CV-00008-MR, 2021 WL 600954, *5 (W.D. N.C. Feb. 16, 2021) (remanding in part because "the ALJ did not engage in a meaningful discussion of the [Section 404.1527(c)] factors so as to facilitate judicial review").
3. Dr. New, Treating Gastroenterologist
In her decision, the ALJ assessed Dr. New's August 2014 opinion wherein Dr. New noted that he had treated Plaintiff five times in 2013 and once in 2014, and that Plaintiff was diagnosed with gastroparesis and gastroesophageal reflux disease ("GERD"). (R. at 665; see also R. at 490.)
As recounted by the ALJ, Dr. New opined, inter alia, that Plaintiff "could sit less than 2 hours total in an 8-hour work day and stand/walk less than 2 hours total in an 8-hour workday. She would need a job that permitted ready access to a restroom and would require about 8 unscheduled restroom breaks during an 8-hour workday. Additionally, the claimant would need 5 more unscheduled breaks The claimant would be absent from work more than 4 days per month as a result of her impairment or treatment." (R. at 665.) The ALJ assigned this opinion "little weight," stating:
[The opinion] is set forth on a check-off type form with little supportive rationale provided for his conclusions. Additionally, some of the listed restrictions do not appear to be within Dr. New's area of expertise and there are some inconsistencies between this opinion and his treatment notes. Notably, Dr. New's opinion set forth several mental limitations, but did not reflect any psychological diagnoses or explain how her gastrointestinal symptoms would reasonably impose mental limitations. Further, his treatment notes fail to document any complaints or clinical findings supporting the mental limits described in his opinion (Exhibit 2F). His description of the claimant's symptoms as including recurrent vomiting, diarrhea, fatigue are not supported by treatment notes, which show that the claimant denied these symptoms on multiple occasions (Exhibit 2F). There are no clinical findings of musculoskeletal abnormalities to support Dr. New's opinion that the claimant's ability to sit and stand is so severely limited and his treatment notes fail to document any indication that the claimant is unable to work.
Also in August 2014, Dr. New wrote to Dr. Trantham, noting that the claimant had followed up with him regarding her gastroparesis. He recommended seeking Botoxin or a gastric pacemaker or returning to Dr. Byrne for a gastric sling. The claimant was advised regarding preventative dietary changes, blood sugar control, and to keep follow up appointments with Dr. Byrne and Dr. Trantham (Exhibit 19F/25). Notably, Dr. New's report did not suggest that the claimant was as limited as set forth in the medical source questionnaire.(R. at 665-66.)
Here, Plaintiff mainly takes issue with the ALJ's consideration of Dr. New's opinion that Plaintiff would need numerous unscheduled restroom breaks. (Dkt. No. 16 at 21.) Again, other than Dr. New's own treatment notes, the ALJ does not offer any analysis as to how Dr. New's opinion regarding Planitiff s need for numerous unscheduled restroom breaks was inconsistent with the record as a whole. See 20 C.F.R. § 416.927(c)(4). Further, many of Dr. New's assessed restrictions are consistent with those opined by Dr. Trantham as well as Plaintiffs subjective statements. Given the ALJ's failure to consider the consistency of Dr. New's opinions with the record as a whole, the undersigned cannot find her decision to discount this opinion is supported by substantial evidence. See Dowling, 986 F.3d at 385; Arakas, 983 F.3d at 107 (finding error in ALJ's analysis of a treating physician opinion where "the ALJ failed to apply the factors listed in 20 C.F.R. § 404.1527(c) to decide how much weight it should be accorded"); Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017) ("In sum, the ALJ erred by failing to appreciate the consistent prognosis of Lewis' treating physicians in contravention of the mandate that "controlling weight" be accorded to such opinions.").
3. Mr. Black, Substance Abuse/Mental Health Counselor
In her decision, the ALJ also assessed Mr. Black's November 2014 opinion, wherein he reported that Plaintiff had been receiving counseling once a month for the past five months. (R. at 667; see also R. at 593.) The ALJ recounted Mr. Black's opinion that, inter alia, Plaintiff had "no useful ability to: . . . complete a normal workday and workweek without interruptions from psychologically based symptoms; [and] perform at a consistent pace without an unreasonable number and length of rest periods"; Plaintiffs "gastroparesis had prevented her from attending a few of her weekly check-in sessions and would likely contribute to a problem maintaining her regular attendance or performing at a consistent pace without interruptions due to pain and gastrointestinal problems"; Plaintiff "would be expected to be absent from work more than 4 days per month due to her impairments or treatment"; and Plaintiffs "obesity, diabetes, prescription medications, and gastroparesis flares would affect her ability to work at a regular job on a sustained basis." (R. at 667; see also R. at 493-501.) The ALJ assigned this opinion "little weight," stating,
Pursuant to Social Security Ruling 06-03p, the undersigned has considered this medical opinion even though Mr. Black is not an "acceptable medical source" pursuant to 20 CFR 416.913(a). Although this opinion is very detailed, the severe mental limitations described are inconsistent with clinical findings on examinations throughout the record, which generally reveal no more than mild to moderate anxiety or depression. Further, the infrequent nature of the claimant's counseling, occurring only once a month, suggests that her symptoms are not as severe as alleged. The claimant's medical sources do not document any occasions when the claimant was unable to attend an appointment due to symptoms of her gastroparesis. The undersigned finds that due to some inconsistency with the record as a whole, Mr. Black's opinion provides some but limited insight into the severity of the claimant's impairments and how they affect her ability to function. Mr. Black's opinion is therefore accorded little weight.(R. at 667-68.)
Here, Plaintiff asserts that Mr. Black's opinion supports finding that Plaintiffs physical impairments exacerbated her anxiety and necessitated additional limitations beyond those assessed in the RFC. (Dkt. No. 16 at 21.) Upon review, many of the limitations opined by Mr. Black are consistent with those opined by Dr. Trantham and Dr. New. (R. at 664 noting that Dr. Trantham opined in March 2014 that Plaintiff "exhibited an obvious work-related limitation in function due to her mental condition"; R. at 665 noting that Dr. New opined Plaintiffs "symptoms would interfere with the attention and concentration needed to perform even simple work tasks at least
15% of the time" and that Plaintiff "would be absent from work more than 4 days per month as a result of her impairment or treatment"). As noted above, the ALJ failed to consider the consistency of the treating physicians' opinions with the evidence in the record, which includes Mr. Black's opinion. Accordingly, the undersigned cannot find her decision is supported by substantial evidence.
C. Remaining Allegations of Error
As mentioned above, Plaintiff also argues that remand is necessary because the ALJ: (1) the ALJ failed to consider the combined effect of Plaintiffs impairments; and (2) the ALJ's assessment of Plaintiffs residual functional capacity ("RFC") is not supported by substantial evidence. (Dkt. No. 16.) The undersigned does not address these remaining allegations of error, as they may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). The undersigned notes, however, that the ALJ's consideration of the highlighted opinion evidence may impact Plaintiffs RFC assessment. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration Plaintiffs remaining allegations of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.