Opinion
No. 7:18-CV-215-D
02-07-2020
JA M. HAMPSON, 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-17, -22] pursuant to Fed. R. Civ. P. 12(c). Claimant Ja M. Hampson ("Claimant") 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 a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and 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 Commissioner's decision be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on August 15, 2016, alleging disability beginning November 25, 2015. (R. 15, 204-05). His claim for a period of disability and DIB was denied initially and upon reconsideration. (R. 15, 92-117). A hearing before the Administrative Law Judge ("ALJ") was held on August 18, 2017, at which Claimant, represented by a counsel, and a vocational expert ("VE") appeared and testified. (R. 15, 32-67). On November 20, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-26). The Appeals Council denied Claimant's request for review on November 2, 2018. (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 that 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 (1) erred in weighing the opinion of Claimant's treating physician, and (2) failed to account for Claimant's moderate difficulties in concentrating, persisting, or maintaining pace. Pl.'s Mem. [DE-18] at 20-31.
The page numbers correspond to those in the CM/ECF footer, which differ from the internal page numbers in Claimant's memorandum.
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 November 25, 2015, the alleged onset date. (R. 18). Next, the ALJ determined Claimant had the severe impairment of spine disorder. Id. At step three, the ALJ concluded the impairment was not severe enough to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-20). 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 and concentrating, persisting, or maintaining pace, and mild limitations in adapting or managing oneself and interacting with others. (R. 19-20).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
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).
[H]e is limited to occasional pushing, pulling, and reaching in all directions with the dominant right upper extremity. The claimant can frequently, but not constantly, handle and finger with the dominant hand. He cannot climb ladders, ropes, or scaffolds, or crawl. The claimant needs to sit or stand at will. He must avoid concentrated exposure to unprotected heights, hazards, and driving. He is able to perform simple, repetitive tasks for two-hour periods followed by customary breaks.(R. 20-24). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical and other evidence in the record. (R. 21). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 24). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy through the date last insured. (R. 25-26).
V. DISCUSSION
A. The Treating Physician's Opinion
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). 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. § 404.1527 still applies in this case. --------
Claimant argues the ALJ erred in failing to give at least substantial weight to the opinion of Dr. Janice Dickerson, Claimant's treating physician of more than seven years. Pl.'s Mem. [DE-18] at 20-28. In September 2017, Dr. Dickerson provided a declaration regarding Claimant's pain and functional limitation of the spine and the the right shoulder, arm, and hand. (R. 884-86). Dr. Dickerson noted that Claimant's January 2013 spinal surgery relieved some pain, but he continued to experience significant right shoulder and hand pain that required treatment with a pain specialist. (R. 884-85). Claimant received epidural injections, physical therapy, and a medication regimen that included Nucynta, a long acting opioid, which provided some pain management. (R. 885). However, he continued to experience significant pain and weakness of the right arm and hand and side effects from the medications, including drowsiness and cognitive dysfunction. Id. Dr. Dickerson concluded as follows:
I believe Mr. Hampson has been markedly limited in his ability to lift items with his dominant right arm or in the performance of work tasks requiring grasping or handling objects such that since the fall of 2015, when I believe he last attempted to work, he could, perhaps, lift or carry objects weighing 5 to 10 pounds occasionally over the course of an 8 hour work day. Similarly, I believe that since the fall of 2015, he could grasp or handle objects occasionally in an 8 hour work day. Moreover, the fatigue caused by the opioids he has had to take to help manage his pain has caused drowsiness and cognitive dysfunction such that he must lie down throughout the day at unpredictable intervals, and he has been unable to concentrate or attend to tasks consistently and reliably for continuous periods of up to 2 hours.(R. 886). The ALJ gave Dr. Dickerson's opinion "little weight" and explained,
although it is ostensibly based on a longstanding treating relationship with the claimant, physical examinations documented in her treatment notes generally revealed few clinical findings. Further, the restriction on lifting and carrying is inconsistent with the claimant's admission at the hearing that he is able to lift 20 to 25 pounds. Overall, this opinion is inconsistent with generally benign findings on physical examinations documented throughout the relevant period.(R. 24). With respect to Dr. Dickerson's treatment notes, the ALJ stated that her treatment had been "generally routine, as she has referred him for specialized treatment as needed." (R. 22).
First, the ALJ properly considered the consistency of Dr. Dickerson's opinion with her treatment notes. 20 C.F.R. § 405.1529(c). Dr. Dickerson's treatment notes during the relevant period indicate she recorded Claimant's complaints of pain and fatigue but that the examination findings were generally normal, and she referred Claimant to specialists for treatment of his neck and right arm and for pain management. (R. 663-66 (noting that in January 2016, Claimant was positive for fatigue, back pain, arthralgias, neck pain, and numbness but on physical examination had full range of motion, no palpable deformities or tenderness, and normal strength and reflexes); R. 764-67 (noting that in September 2016, Claimant was seen for a 3-month office visit that had been due in April; continued to work on his pain with Dr. Wall; reported arthralgias, neck pain and stiffness, numbness, and a depressed mood; had normal range of motion; and was negative for fatigue); R. 852-54 (noting that in January 2017, Claimant reported continued pain in his right shoulder, his neck was somewhat better, his low back bothered him at times, he was sleeping half the day due to pain medications, he had numbness in his right and sometimes left arm, and his triggers included repetitive tasks and prolonged standing and walking; Dr. Dickerson agreed with Claimant that he could not work; and Claimant's physical examination showed normal range of motion and normal strength and reflexes)).
Second, with respect to Claimant's fatigue, Dr. Wall, not Dr. Dickerson, was Claimant's pain management doctor, and he adjusted Claimant's medications to address his pain, fatigue, and cognitive issues. For example, in November 2016, Dr. Wall removed Gabapentin from Claimant's medication regimen after noting he should not be taking both Gabapentin and Lyrica (R. 802-04); in February 2017, Dr. Wall noted that Claimant had decreased his overall pain medications, his cognition was improved since he stopped using Gabapentin, his pain was 85% relieved by medication, and he was sleepy in the daytime due to not sleeping at night (R.826); and in May 2017, Dr. Wall noted that Cymbalta was helping Claimant's daytime energy level (R. 832-34). Therefore, although Claimant reported to Dr. Dickerson in January 2017 that he was sleeping half the day due to pain medications (R. 852), the ALJ correctly noted that adjustments by Dr. Wall to Claimant's medications thereafter improved his cognition and drowsiness (R. 22, 24, 802-04, 826, 832-34).
Finally, the ALJ properly noted Claimant's testimony that he could lift twenty to twenty-five pounds when considering Dr. Dickerson's opinion that Claimant could only lift five to ten pounds with his right arm. Claimant's admitted ability would not preclude the range of light work determined by the ALJ, 20 C.F.R. § 404.1567(b), despite Dr. Dickerson's opinion as to Claimant's ability to lift less weight with his right arm. "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)). Here, the ALJ considered appropriate factors in weighing Dr. Dickerson's opinion, and the decision to afford it little weight is supported by substantial evidence. Accordingly, the ALJ did not err in weighing Dr. Dickerson's opinion. B. The Ability to Maintain Concentration, Persistence, or Pace
The Fourth Circuit held in Mascio v. Colvin 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 632, 638 (4th Cir. 2015) (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) Coining 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.").
Claimant contends the ALJ did not properly account for his moderate difficulties in maintaining concentration, persistence, or pace. Pl.'s Mem. [DE-18] at 28-33. At step three, the ALJ found Claimant had a moderate limitation with regard to concentrating, persisting, and maintaining pace. (R. 19). The ALJ noted that Claimant "complains of problems with concentration and focus due to his prescription medications," and "has also described some drowsiness, which could affect his ability to maintain pace at times." Id. However, in formulating the RFC, the ALJ explained that "[a]lthough side effects of drowsiness or sleepiness were reported at times, these side effects appeared to resolve with adjustments to the claimant's medication regimen." (R. 22). In addition to the limitations related to Claimant's right arm pain, the ALJ limited Claimant to no climbing ladders, ropes, or scaffolds; no crawling; avoiding concentrated exposure to heights, hazards, and driving; and performance of simple, routine tasks for two hour periods followed by customary breaks. (R. 20, 24). The ALJ explained that
[t]hese additional limitations are largely included as reasonable precautions secondary to the claimant's ongoing need for possibly sedating prescription medications. Although the record reveals that the claimant's cognition improved after discontinuing Gabapentin and the claimant rarely complained of significant side effects to his treating physicians, these restrictions are reasonable.(R. 24). The ALJ in this case, unlike in Mascio, explained why Claimant did not require further restrictions related to his ability to stay on task, i.e., Claimant's limitations were related to medication side effects, and his cognition and fatigue improved after medication changes. As discussed above, treatment records support this conclusion. (R. 802-04, 826, 832-34). The ALJ's inclusion of a two-hour "time-specific limitation" on the Claimant's ability to perform simple, routine tasks, followed by "customary breaks," also accounts for Claimant's ability to stay on task. Olsen v. Berryhill, No. 3:18CV124 (JAG), 2019 WL 407469, at *12 (E.D. Va. Jan. 16, 2019) (collecting cases finding that a "time-specific limitation accounts for a claimant's ability to stay on task"), adopted by 2019 WL 404982 (E.D. Va. Jan. 31, 2019). Accordingly, the ALJ did not err in accounting for Claimant's moderate limitation in maintaining concentration, persistence, or pace.
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-22] be ALLOWED, and the Commissioner's decision be affirmed.
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 February 21, 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, the 7 day of February, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge