Opinion
No. 5:19-CV-39-D
09-13-2019
CARSTON EXUM, Plaintiff/Claimant, v. ANDREW M. 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-17, -20] pursuant to Fed. R. Civ. P. 12(c). Claimant Carston Exum ("Claimant"), proceeding pro se, filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income ("SSI") payments. 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 denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI on February 18, 2016, alleging disability beginning the same date. (R. 31, 166-75). His claim was denied initially and upon reconsideration. (R. 31, 69-104). A hearing before the Administrative Law Judge ("ALJ") was held on March 27, 2018, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 55-68). On June 11, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 28-49). Claimant then requested a review of the ALJ's decision by the Appeals Council (R. 163-64), and he submitted additional evidence as part of his request (R. 50-54). The Appeals Council found that the evidence did not show a reasonable probability that it would change the outcome of the decision, so it did not consider and exhibit the evidence. (R. 6). The Appeals Council denied Claimant's request for review on December 13, 2018. (R. 5-10). 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. § 416.920 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. § 416.920a(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. § 416.920a(c)(3). The ALJ is required to incorporate into her written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant alleges the ALJ improperly weighed the medical evidence, the opinion evidence, the VE's testimony, and the Claimant's testimony; the ALJ failed to consider the reasons why Claimant stopped taking his antidepressant medication; the ALJ failed to account for Claimant's limitations in interacting with others, concentrating, and maintaining pace; and the ALJ failed to use a medical expert ("ME") at the hearing. Pl.'s Mem. [DE-15] at 1-6.
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 since February 18, 2016, the application date. (R. 33). Next, the ALJ determined Claimant had the severe impairments of hernia, osteoarthritis, adjustment disorder with depressed mood, major depressive disorder, and unspecified anxiety disorder and the non-severe impairments of pre-diabetes, vision loss, history of buttock abscess, hematuria, mild obesity, tachycardia, dental caries, rhinitis, and a history of polysubstance abuse. (R. 33-34). At step three, the ALJ concluded Claimant's 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. 34-35). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in mild limitations in understanding, remembering, or applying information and adapting or managing oneself and in moderate limitations in interacting with others and concentrating, persisting, or maintaining pace. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant could perform medium work with the ability to understand, remember, and carry out simple instructions, which is defined to mean activity that is consistent with a reasoning level of 2 or 3 as defined in the Dictionary of Occupational Titles; sustain attention and concentration sufficient to carry out simple instructions over two-hour periods of time in an eight-hour workday; interact occasionally with the general public and coworkers; and work in a low stress setting, which is specifically defined to mean no fast paced production, only simple work related decisions, and few or no changes in the work setting. (R. 35-43). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of his symptoms not entirely consistent with the medical and other evidence in the record. (R. 41). At step four, the ALJ concluded Claimant was unable to perform any past relevant work. (R. 43). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 43-44).
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, he can also do sedentary and light work. 20 C.F.R. § 416.967(c).
V. DISCUSSION
A. The ALJ's RFC Determination
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record, which may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted).
"[T]he residual functional capacity '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' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide "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)." Id. (quoting S.S.R. 96-8p). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). The Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.
1. The Medical Evidence
Claimant contends the ALJ erred by giving no credibility to his emergency visit to the hospital on February 5, 2016 or to his admission to a crisis center from February 5-10, 2016; crediting false evidence from the Boston Medical Center indicating Claimant was in a transitional program; and crediting Dr. Thakur's normal mental examination findings. Pl.'s Mem. [DE-15] at ¶¶ 1-3.
The ALJ considered and discussed Claimant's February 5 emergency room visit, his subsequent admission to the crisis center, and his February 11 emergency room visit. (R. 36-37). On February 5, Claimant arrived at the emergency room "in crisis." (R. 36, 286). He had been released from prison two days prior and was living in a "rooming house" but feared for his safety because he believed some of the other residents were violent. Id. Claimant was not eating, adequately drinking, showering, or sleeping and he had a flat affect, anxious mood, and poor insight and judgment. (R. 36, 286-87). The emergency provider believed Claimant would benefit from a "brief crisis admission" to assist in his adjustment from prison and with gaining services, and Claimant was accepted at Bay Cove Crisis Center. (R. 36, 287).
Claimant was admitted to Bay Cove on February 5 with depression and anxiety. (R. 36, 289-92). While at Bay Cove, Claimant participated in groups, interacted well with staff and others, and restarted medication. (R. 36, 289). Claimant was concerned about where he would go when released but met his stabilization goals; was diagnosed with major depressive disorder, recurrent, mild; and was discharged on February 10. (R. 36-37, 289-92). However, later that day, Claimant was seen in the emergency department for fatigue and weakness. (R. 37, 306-07). Claimant's mood was reported as depressed, but his physical and mental examinations were otherwise normal. (R. 37, 307). Claimant was given food and drink and reported feeling better. (R. 37, 308). Claimant was discharged in stable condition, and it was noted that he had been in a "transitional program" and appeared to have difficulty adjusting from release from prison. Id.
The ALJ indicated this occurred on February 11 (R. 37), but the record indicates Claimant was seen on February 10 (R. 306-08). There is a physician's note on the record from February 11 (R. 306), which may account for the ALJ's immaterial error.
Claimant sought readmission to Bay Cove on February 12 because he continued to have adjustment difficulties. (R. 37, 293). Claimant was living at Pine Street Inn and receiving case management support at St. Francis House but was concerned with other clients' drug use there due to Claimant's own prior drug use. (R. 293). Claimant expressed depressive symptoms, but his mental status was otherwise normal. (R. 37, 293). Claimant was not admitted but was recommended to follow up with a primary care provider and psychiatry, and appointments were scheduled. (R. 37, 294).
The ALJ acknowledged Claimant's depression and anxiety and his need for crisis treatment after being released from prison. (R. 41). However, the ALJ found that Claimant responded well to the treatment he received, continued to receive psychiatric services, and was often non-compliant with his medications. (R. 41-42). The ALJ adequately explained her reasoning in not finding Claimant disabled based on this evidence, and it is not the court's role to re-weigh evidence. Mastro, 270 F.3d at 176 (citing Craig, 76 F.3d at 589).
Claimant also takes issue with the emergency department record stating that he was in a "transitional program." (R. 308). This appears to be a dispute over semantics. Claimant was first in a rooming house immediately after his release from prison (R. 286), next he went into the Bay Cove crisis program (R. 289-92), and then he was discharged to the Pine Street Inn and received case management support at St. Francis House (R. 293). Any of these could reasonably be referred to as a "transitional program," and even if he was not in such a program, it is not apparent how Claimant was prejudiced in the ALJ's decision by the alleged error.
Claimant disputes Dr. Thakur's June 9, 2017 examination findings that Claimant demonstrated no depression, anxiety, or agitation and had intact judgment and insight. (R. 440). Claimant argues that he "passed her depression test" and Dr. Thakur prescribed Citalopram, an anti-depressant, which he took for two months but stopped because it caused hallucinations. Pl.'s Mem. [DE-15] ¶ 4. Dr. Thakur was Claimant's medical provider at Advance Community Health. The ALJ accurately cited what Dr. Thakur wrote in the June 9 treatment note. (R. 41). The ALJ also cited the December 9, 2016 treatment note where Dr. Thakur indicated that Claimant had stopped taking his Citalopram because he was going to Monarch (his mental health provider) for therapy. (R. 40, 381). There is no apparent error in the ALJ's consideration of Dr. Thakur's treatment notes.
2. The Opinion Evidence
Claimant contends the ALJ erred by giving more weight to the opinions of the state agency consultants than to the opinion of his sister and also claims that Dr. Ricci, a consultative examiner, and Monarch, a psychological treatment provider, were biased such that he had no one to prove his claim. Pl.'s Mem. [DE-15] ¶¶ 6, 9-10, 13-14.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 416.945(a)(3). Regardless of the source the ALJ must evaluate every medical opinion received. Id. § 416.927(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. § 416.927(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. § 416.927(c)(2). 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).
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. § 416.927 still applies in this case. --------
First, Claimant expressed confusion as to why the opinions of Dr. Tyrrell and Dr. Berry are relevant when they have never seen or treated Claimant. Pl.'s Mem. [DE-15] ¶ 10. As the ALJ noted, these doctors are "non-examining Disability Determination (DDS) source[s]." (R. 39). State agency disability examiners and medical or psychological consultants make the disability determination at the initial and reconsideration stage of the administrative review process. 20 C.F.R. § 416.927(e)(1). The ALJ is not bound by the findings of the state agency consultants but must consider their findings because they are "highly qualified" and "experts in Social Security disability evaluation." Id. § 416.927(e)(2)(i). While examining source opinions are generally entitled to more weight than non-examining source opinions, id. § 416.927(c)(1), "the testimony of a nonexamining physician can be relied upon when it is consistent with the record," Tanner v. Comm'r of Soc. Sec., 602 F. App'x 95, 101 (4th Cir. 2015) (quoting Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Dr. Tyrrell and Dr. Berry, in June and July of 2016, respectively, found Claimant capable of performing simple, routine, and repetitive tasks. (R. 39, 84-86, 99-102). The ALJ found that evidence after their opinions were rendered did not support a finding that Claimant's condition had materially changed. (R. 42). Thus, the ALJ accorded moderate weight to their opinions but added further limitations for interacting with others based on Claimant's hearing testimony. Id. Dr. Tyrrell's and Dr. Berry's opinions are consistent with Dr. Ricci's consultative examining opinion that Claimant was capable of performing simple tasks and following simple instructions (R. 459-61), and no treating source provided a more restrictive opinion. Accordingly, the ALJ properly weighed the state agency reviewing doctor's opinions.
Second, Claimant contends the ALJ erred in assigning no weight to the opinion of his sister who cares for him daily. Pl.'s Mem. [DE-15] ¶ 6. The ALJ discussed the third-party report completed by Ms. Exum, who reported that Claimant lived in a shelter or an apartment with her; he had a poor appetite and poor hygiene; he was able to perform his own personal care but had no energy or interest in doing so; he was able to count change but not to pay bills or manage a savings account; his hobby was watching television, he rarely had social activities, and he only went to his medical appointments; he was able to keep up with his appointments; he had no problem getting along with others; he had problems in lifting, bending, walking, standing, kneeling, and in his concentration, memory, and completing tasks; he had a hernia and painful joints; he was able to walk for maybe a block; he could not pay attention for long and was unable to finish what he started; he could follow both written and spoken instructions; he did not handle stress well but did fairly well with changes to his routine; and he was extremely worried and depressed. (R. 40, 231-38).
The ALJ assigned limited weight to Ms. Exum's report because she was a nonmedical source lacking program knowledge. (R. 42). A nonmedical source's opinion is evaluated using the same factors as an opinion from a medical source, although not every factor will apply in every case. 20 C.F.R. § 416.927(f)(1). The ALJ appropriately considered Ms. Exum's "amount of understanding of [the SSA's] disability programs and their evidentiary requirements," id. § 416.927(c)(6), in discounting her opinion. Furthermore, the ALJ explained that Claimant received no significant treatment for his shoulder and knee pain, many of his physical examinations were largely unremarkable, he was not taking pain medication, no treating source had imposed physical limitations, he responded well to psychiatric treatment, his mental status examinations were largely unremarkable, and he was often non-compliant with medications. (R. 41). Thus, reading the ALJ's decision as a whole, it is apparent that the ALJ found Ms. Exum's opinion to be inconsistent with the medical evidence.
Third, Claimant contends Dr. Ricci and Monarch were biased in favor of the SSA, the ALJ improperly weighed Dr. Ricci's opinion, and Claimant has no one to prove his claim. Pl.'s Mem. [DE-15] ¶ 9, 13-14. Dr. Ricci conducted a consultative psychological examination of Claimant on May 23, 2016. (R. 38-39, 459-61). Dr. Ricci concluded that Claimant appeared capable of following some simple directions, performing some simple tasks, and maintaining basic attention and concentration but may have difficulty maintaining a regular schedule, learning new complex tasks without significant training or supervision, making appropriate decisions, relating adequately with coworkers and supervisors, and dealing with the stress of daily work activities. (R. 38-39, 461). The ALJ found Dr. Ricci's opinion to be overall consistent with the medical evidence and gave it substantial weight. (R. 42). The ALJ was not required to adopt Dr. Ricci's opinion in whole, and the ALJ addressed most of Dr. Ricci's concerns regarding Claimant's potential limitations from his depression by limiting Claimant to work requiring only simple instructions, occasional interaction with the general public and coworkers, and a low stress setting (no fast-paced production, only simple work decisions, and few or no changes in the work setting). (R. 35). The ALJ appropriately considered the consistency of Dr. Ricci's opinion with the record as a whole, 20 C.RR. § 416.927(c)(4), and Claimant has presented only a bare allegation that Dr. Ricci was biased in his evaluation. Likewise, Claimant has presented no evidence to support his claim that Monarch "does not want to go against the SSA . . . ." Pl.'s Mem. [DE-15] ¶ 13. Finally, there was no need for an additional consultative examination because the record contained no apparent conflicts to be resolved and there was sufficient evidence for the ALJ to make a disability determination. See Carpenter v. Colvin, No. 5:14-CV-858-FL, 2016 WL 1254568, at *9 (E.D.N.C. Feb. 8, 2016) (finding no need for a psychological consultative examination because the record contained sufficient evidence from which to make a disability determination), adopted by 2016 WL 1258467 (E.D.N.C. Mar. 30, 2016).
3. The Claimant's Ability to Maintain Attention, Concentration, and Pace and to Interact with Others
Claimant contends the ALJ did not adequately consider his inability to pay attention, concentrate, keep up with the pace of work, or get along with coworkers and supervisors due to spells that make him panic and isolate from anyone other than his sisters. Pl.'s Mem. [DE-15] at 4.
The Fourth Circuit held in Mascio that "an ALJ does not account 'for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court explained that "the ability to perform simple tasks differs from the ability to stay on task" and that "[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. The court acknowledged there could be instances where a moderate limitation in concentration, persistence, or pace at step three does not require a limitation in the RFC; however, the failure to explain such a result is error requiring remand. Id. ("Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. . . . But because the ALJ here gave no explanation, a remand is in order.").
Here, the ALJ found Claimant was moderately limited in his ability to concentrate, persist, or maintain pace and to interact with others. (R. 35). The ALJ accounted for Claimant's moderately limited ability to pay attention and concentrate by limiting him to carrying out simple instructions over two-hour periods of time in an eight-hour workday. Id. The ALJ accounted for Claimant's moderately limited ability to stay on task by limiting him to a low stress setting, which meant no fast-paced production work, only simple work decisions, and few or no changes in the work setting, and by limiting his social interactions. Id. The limitations directed to the pace of Claimant's work distinguishes this case from Mascio, in which the claimant was only limited to simple, routine tasks. See Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. Oct. 17, 2017) (holding that limitations to working in a low stress, non-production job with no public contact were sufficient to account for moderate limitations in concentration, persistence, or pace); Lee v. Colvin, No. 5:15-CV-142-D, 2016 WL 816784, at *1-2 (E.D.N.C. Feb. 29, 2016) (finding a hypothetical limiting the individual to no fast paced or quota based work and limiting contact with supervisors, co-workers, and the public comported with Mascio and the claimant's mental restrictions in concentration, persistence, or pace).
This case is also distinguishable from the Fourth Circuit's recent decision in Perry v. Berryhill where the court took issue with a limitation to a "non-production oriented work setting" because the phrase was undefined in the regulations, and the ALJ offered no explanation as to what was meant. 765 F. App'x 869, 872 (4th Cir. 2019). Here, the ALJ explained that Claimant was restricted to a low-stress setting that involved no fast-paced work, only simple work decisions, and few or no changes in the work setting. (R. 35). These "descriptors" provide sufficient context to explain the intended restrictions and to allow the court to conduct a meaningful review. Perry, 765 F. App'x at 872 n.1 (distinguishing the case from Sizemore, in which the ALJ sufficiently explained that the claimant was limited to a low stress setting with no fast-paced work or public contact). Accordingly, the ALJ sufficiently accounted for Claimant's moderate limitation in concentration, persistence, and pace.
With respect to Claimant's ability to interact with others, the ALJ acknowledged Claimant's report that he is paranoid of others and keeps to himself but also noted that he is able to communicate in a logical and coherent manner, does not exhibit extreme behavior, is able to participate and engage in group therapy, and gets along well with family. (R. 35). The ALJ also noted that psychological treatment notes from Monarch indicated Claimant's mental status exams were generally unremarkable and that he was participating in group therapy discussions to improve his psychiatric symptoms and coping skills. (R. 38-40, 331-35, 389-436). The ALJ imposed a limitation to only occasional interaction with the general public and coworkers, which sufficiently accounted for Claimant's difficulties in interacting with others.
4. The Claimant's Testimony
Claimant contends the ALJ erred in not crediting his testimony regarding the severity and limiting effects of his depression and failed to sufficiently consider why he stopped taking his antidepressants. Pl.'s Mem. [DE-15] ¶¶ 7-8, 11-13.
When assessing a claimant's RFC, it is within the province of the ALJ to determine whether a claimant's statements are consistent with the medical and other evidence. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984) ("Because he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight.") (citation omitted). Federal regulation 20 C.F.R. § 416.929(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work," Craig, 76 F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D.N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D.N.C. Apr. 26, 2011).
Claimant contends that the ALJ erred in relying heavily on the fact that he was not taking his prescribed antidepressant medication without considering that he tried five antidepressant medications and stopped taking them because they could have killed him. Pl.'s Mem. [DE-15] ¶ 7. A claimant may have good reasons for not following a prescribed treatment; thus, possible reasons why an individual may not adhere to prescribed treatment must be considered, and the ALJ must explain how those reasons were considered. See S.S.R. 16-3p, 2016 WL 1119029, at *9-10 (requiring the ALJ to "consider and address reasons for not pursuing treatment that are pertinent to an individual's case," "review the case record to determine whether there are explanations for inconsistencies in the individual's statements about symptoms and their effects," and "explain how [the ALJ] considered the individual's reasons in [the] evaluation of the individual's symptoms.").
The ALJ noted several occasions when Claimant reported depressive symptoms but admitted to not taking his prescribed medications. (R. 37-42). On March 17, 2016, Claimant reported that he was not taking any medications, that he was prescribed Remeron and Prozac by Boston Emergency Services the month prior, and that the Remeron was not helpful. (R. 347). On April 7, Claimant presented to Monarch for a prescription refill, stated that he discontinued Zoloft due to nausea but recalled tolerating Prozac, and he was instructed to start Trazadone and Prozac. (R. 38, 360). On May 5, Claimant's dosage of Prozac was increased in an attempt to improve his mood. (R. 358). On May 24, Claimant reported to Dr. Ricci that he had been taking Trazadone and Fluoxetine (Prozac) but they made him feel much worse, so he stopped taking them. (R. 38, 459). On June 8, Claimant presented to Monarch and reported that he stopped taking his medication several weeks ago due to chest pains. (R. 39, 366). He also denied any changes in his sleep or mood, indicated he was sleeping and eating well, his mood was noted to be relaxed, and his mental status exam was unremarkable. Id. On June 22, Claimant was seen at Monarch and indicated he did not want to restart medication but did want to start therapy, and his mental status examination was unremarkable. (R. 39, 357). At a July 21 follow-up visit with Monarch, Claimant indicated he wanted to restart medications upon the recommendation of his disability attorney, and Claimant's mental status examination was unremarkable. (R. 39, 331). On August 12, Claimant presented at Advance Community Clinic for depression medication, he indicated he was having difficulty getting to Monarch due to transportation issues, he was prescribed Citalopram and advised to give it four weeks to get into his system, and he was advised to attend regular counseling at Monarch. (R. 40, 368-72). At a follow up visit at Advance on September 9, Claimant reported having no side effects on Citalopram but that he continued to have low energy. (R. 40, 377). At a December 9 visit to Advance, Claimant reported that he stopped taking his depression medication because he "didn't feel like the meds were energizing" him and he was attending therapy at Monarch. (R. 40, 381-82). At his April 7, 2017 follow-up visit to Advance, Claimant indicated that he had stopped and restarted his therapy at Monarch and that he had tried Zoloft, Prozac, and Citalopram but believed they caused him to hear voices and they would sedate him. (R. 40, 445). Dr. Thakur advised Claimant to ask Monarch to help him see a psychiatrist because he needed to be on the right medication that would keep him motivated but not sedated. (R. 447). On June 9, Claimant again indicated he was not currently on medication due to fear of sedating effects preventing him from getting to his probation officer. (R. 40-41, 438). Records from Monarch from December 2016 to January 2018 indicate Claimant participated in group therapy.
The ALJ acknowledged that Claimant stopped Zoloft due to nausea and Prozac due to chest pain but noted that he reported no side effects from Citalopram. (R. 39-40, 360, 366, 377). Furthermore, there is no indication that Claimant followed Dr. Thakur's advice to see a psychiatrist at Monarch because he needed to be on the right medication that would keep him motivated but not sedated. (R. 447). Finally, the ALJ did not solely rely on Claimant's failure to take his medications but also found that Claimant responded well to treatment and that his mental status examinations were for the most part unremarkable. (R. 41-42). Accordingly, the ALJ appropriately considered Claimant's failure to take his medications as prescribed in evaluating the severity of his depression.
Claimant also contends the ALJ did not understand the effect of his depression on his ability to bathe, dress, and perform normal activities and erroneously concluded that Claimant could work because he attended an hour of therapy once a week was able to interact with his sisters. Pl.'s Mem. [DE-15] ¶¶ 8, 11-12. The ALJ recounted Claimant's testimony that he suffered from depression, worried frequently, lacked motivation to go out but was able to do so once a week because of his therapy, lacked energy, lacked motivation to shower or dress himself, and socialized only with his sisters. (R. 41). However, the ALJ found Claimant's testimony inconsistent with other evidence in the record. Id. The ALJ explained that Claimant had a brief admission to a crisis center after his release from prison but responded well to treatment while admitted; participated in group therapy; continued to receive psychiatric services; failed to consistently take his medications; demonstrated overall unremarkable mental status examinations; and performed chores, prepared simple meals, and went out alone. (R. 42-43). To account for Claimant's limitations in interacting with others, the ALJ limited Claimant to only occasional contact with the general public and coworkers. (R. 35). It is not the role of the court to re-weigh evidence or substitute its judgment for that of the ALJ. Mastro, 270 F.3d at 176. The ALJ considered Claimant's statements about his symptoms in light of all the evidence of record and sufficiently explained why he did not find Claimant to be as limited as he alleged. Accordingly, the ALJ properly assessed Claimant's subjective symptoms.
5. The VE's Testimony
Claimant contends the ALJ erroneously credited the testimony of the VE that Claimant would miss only two days of work per month over the testimony of Claimant's attorney that Claimant would miss every day of work. Pl.'s Mem. [DE-15] ¶ 5. In determining whether an individual with the claimant's RFC, age, education, and work experience can adjust to other jobs in the national economy, the ALJ may consider the testimony of a VE. The purpose of a VE is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); see also 20 C.F.R. § 416.966(e). In order for a VE's opinion to be relevant or helpful, "it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Walker, 889 F.2d at 50.
At the administrative hearing, the VE did not testify that Claimant would miss only two days of work per month. (R. 66-68). In response to a question from Claimant's counsel regarding the tolerance for absenteeism, the VE testified that a hypothetical individual who was absent more than one work day per month would be unable to sustain full-time employment. (R. 67). Claimant's attorney argued that he would have too many absences from work because of severe anxiety and depression. (R. 68). Argument is not evidence, and the ALJ determined that the medical evidence and the physician's opinion evidence did not support the alleged severity of Claimant's mental impairments such that he would miss more than one day of work per month. (R. 41-43). Accordingly, the ALJ did not err in weighing the VE's testimony.
6. The Need for a Medical Expert at the Administrative Hearing
Claimant contends a medical expert was needed at the administrative hearing to address his severe rhinitis medicamentosa, which requires him to blow and wipe mucus from his nose constantly and prevents him from working. Pl.'s Mem. [DE-15] at 5.
"[T]he decision to obtain the opinion of a medical expert is wholly within the ALJ's discretion." See Crihfield v. Comm'r of Soc. Sec., No. 4:15-CV-49, 2017 WL 474549, at *9 (W.D. Va. Jan. 13, 2017), adopted by 2017 WL 473920 (W.D. Va. Feb. 3, 2017). The ALJ determined that Claimant's rhinitis was non-severe at step two. (R. 33). In the RFC discussion, the ALJ noted that on December 9, 2016, Claimant reported a runny nose to his treatment provider, examination revealed "boggy turbs" in the nasal passages, and Claimant was assessed with rhinitis medicamentosa and prescribed Loratadine and Nasacort; and on June 9, 2017, Claimant reported having some nasal rhinitis, examination revealed boggy turbs and a congested right nostril, Claimant tried Nasacort for a week but then stopped taking it, and Claimant was referred to an ENT. (R. 40-41, 381-85, 437-42). At the administrative hearing, Claimant did not mention his rhinitis (R. 59-64), and there are no medical records related to an ENT visit. The ALJ sufficiently considered Claimant's rhinitis in evaluating his RFC, and there are no inconsistencies in the record that would require the ALJ to consult a medical expert. See Crihfield, 2017 WL 474549, at *9 (finding no error in the ALJ's failure to utilize a medical expert where the record was adequate for the ALJ to render a decision); Sunderland v. Colvin, No. 5:12-CV-20, 2013 WL 4501418, at *7 (W.D. Va. Aug. 22, 2013) ("An ALJ can solicit the assistance of a medical source, but there is no rule requiring the use of a medical expert in determining the function limitation a claimant has when determining an appropriate RFC."). Accordingly, the ALJ did not err in failing to obtain a medical expert to opine on Claimant's rhinitis at the administrative hearing.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-17] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-20] be ALLOWED and the final decision of the Commissioner be UPHELD.
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 September 27, 2019 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 13th day of September, 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge