Opinion
No. 5:18-CV-208-D
03-26-2019
PHYLLIS MARIE HART, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting 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-31, -33] pursuant to Fed. R. Civ. P. 12(c). Claimant Phyllis Marie Hart ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive briefing 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 final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability, DIB, and SSI on August 19, 2016, alleging disability beginning July 8, 2016. (R. 16, 349-58). Her claims were denied initially and upon reconsideration. (R. 16, 88-153). A hearing before the Administrative Law Judge ("ALJ") was held on December 1, 2017, at which Claimant, represented by counsel, appeared and testified. (R. 16, 40-65). The ALJ procured the testimony of a vocational expert ("VE") through post-hearing written interrogatories. (R. 494-502). On January 22, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 13-32). The Appeals Council denied Claimant's request for review on March 15, 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 and 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. §§ 404.1520a(b)-(c) and 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. §§ 404.1520a(c)(3), 416.920a(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), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred by improperly weighing the opinion evidence and failing to properly develop evidence from the VE. Pl.'s Mem. [DE-32] at 5-8.
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 the alleged onset date. (R. 19). Next, the ALJ determined Claimant had the following severe impairments: bipolar disorder; post-traumatic stress disorder ("PTSD"); alcohol, cocaine, and sedative hypnotic use disorders; and status post L4-L5 lumbar fusion with decompression. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19-21). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 20). Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding she had the ability to perform medium work with the following limitations:
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. §§ 404.1567(c), 416.967(c).
She can occasionally climb ladders, ropes, and scaffolds. She can frequently climb ramps and stairs, stoop, crouch, kneel, and crawl. The claimant is limited to simple, routine tasks in a low-stress job, defined as having no fast-paced production rate work involving quotas. She can have only occasional interaction with coworkers and the public.(R. 21-24). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work. (R. 24-25). Nonetheless, 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. 25-26).
V. DISCUSSION
A. The ALJ's Evaluation of Opinion Evidence
Claimant contends the ALJ erred by assigning no weight to the opinion of Dr. Sriraman, a treating psychiatrist. Pl.'s Mem. [DE-32] at 6-7. The Commissioner contends the ALJ properly evaluated the opinion, and the decision is supported by substantial evidence. Def.'s Mem. [DE-34] at 4-9.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. §§ 404.1527(c), 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. §§ 404.1527(c)(1), 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. §§ 404.1527(c)(2), 416.927(c)(2). Though the opinion of a treating physician is generally entitled to "great weight," the ALJ is not required to give it "controlling weight." Craig, 76 F.3d at 590 (quotations & citations omitted). In fact, "if 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." Id.; see Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (stating "[t]he ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence.").
The rules for evaluating opinion evidence for claims filed after March 27, 2017 are found in 20 C.F.R. §§ 404.1520c, 416.920c, but 20 C.F.R. §§ 404.1527, 416.927 still apply in this case.
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). While an ALJ is under no obligation to accept any medical opinion, medical evidence may not be rejected for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).
Dr. Sriraman completed a Mental Residual Functional Capacity Statement on June 13, 2016. (R. 683-86). The majority of findings were presented in a check-the-box manner. Dr. Sriraman indicated Claimant would be unable to perform most tasks related to understanding and memory, concentration, and social interaction for 10% or more of the workday; she would be off task more than 30% of the workday; she would be unable to work a full day or absent more than six days every month; and she would be unable to maintain competitive work for a full workday, five days a week. Id. Dr. Sriraman indicated he relied on Claimant's history, medical files, and progress notes in forming the opinion. (R. 686).
The ALJ evaluated Dr. Sriraman's opinion as follows:
The June 2016 opinion of Dr. Sriraman that the claimant will be off task more than 30 percent of the workday, will miss more than six days of work per month, and is not able to obtain and retain work in a competitive work environment on a regular
and continuing basis, is given no weight. Dr. Sriraman's opinions on a checkbox mental residual functional capacity form do not cite to any objective findings from treatment records. Additionally, the severity of limitations he offered are not fully consistent with Dr. Sriraman's own notation at an office visit in July 2017 that the claimant was "doing very good, has responded well to medications" and "has been clean and sober;" nor with the substantial evidence of record which shows the same when the claimant is compliant with medication (C10F, C11F).(R. 23). Thus, the ALJ gave two reasons for the weight assigned to Dr. Sriraman's opinion: it was on a check-the-box form and did not cite objective findings from the treatment records; and it was not fully consistent with Dr. Sriraman's own treatment note from July 2017 or with other evidence of record indicating Claimant did well when compliant with her medications. Id. The ALJ's reasoning is consistent with the regulations and supported by substantial evidence.
First, a check-the-box form without more may be discounted. See Schaller v. Colvin, No. 5:13-CV-334-D, 2014 WL 4537184, at *16 (E.D.N.C. Sept. 11, 2014) ("[S]ince the opinion is in the form of a questionnaire, the ALJ was entitled to assign it less weight than a fully explanatory and narrative opinion because such form opinions do not offer adequate explanation of their findings.") (citations omitted). Dr. Sriraman's findings were on a check-the-box form, he provided no comments or remarks regarding those findings, and he only checked boxes regarding the type of evidence he considered without citing to any specific treatment records or other evidence. (R. 683-86).
Second, although Dr. Sriraman indicated he relied on Claimant's medical file, history, and progress notes in formulating the opinion, the ALJ found that the opinion was inconsistent with other evidence of record indicating Claimant did well when compliant with her medications. (R. 23). An ALJ may give an opinion less weight if it is unsupported by or inconsistent with the medical and other evidence of record. Craig, 76 F.3d at 590. The ALJ cited a July 26, 2017 treatment note from Dr. Sriraman indicating Claimant was "doing very good," had "responded well [to] medications," had been "clean and sober," and was looking for an apartment to live on her own. (R. 23, 687); see Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) ("If a symptom can be reasonably controlled by medication or treatment, it is not disabling."). The ALJ did not ignore contradictory evidence in the record, but rather discussed Claimant's documented history and treatment related to her bipolar disorder, PTSD, and substance abuse. (R. 22-23). However, the ALJ found the records indicated Claimant's condition improved with medication management and compliance. (R. 22). For example, the ALJ discussed Claimant's July 23, 2016 hospitalization where she received inpatient treatment, her symptoms resolved with medication, and her mental status evaluation was normal at discharge. (R. 22, 568-68). The ALJ also observed that Claimant received no regular mental health follow-up for six months post-discharge at which time she admitted being out of her medication. (R. 22, 688). The ALJ did not err in evaluating Dr. Sriraman's opinion. See Dunn v. Colvin, 607 F. App'x 264, 271 (4th Cir. June 1, 2015) (concluding the ALJ did not err in affording limited weight to a treating source's opinion where "there is more than a 'scintilla of evidence' in the record supporting the ALJ's conclusion that [the physician's] opinion is incongruent with both his own treatment notes and some of the other medical evidence in the record.").
B. The Vocational Expert Evidence
The Claimant contends the ALJ failed to properly develop the evidence from the VE by utilizing post-hearing interrogatories to develop testimony, posing alternative hypotheticals, failing to inform counsel how the VE's answers would be used in formulating a decision, and failing to describe all of the VE's opinions in the decision. Pl.'s Mem. [DE-32] at 7-8. The Commissioner contends that substantial evidence supports the ALJ's decision at step five. Def.'s Mem. [DE-34] at 9-10.
The ALJ may utilize a VE at steps four and five "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). In order for a VE's opinion to be "relevant or helpful," it must be given in response to a proper hypothetical question. Id. A proper hypothetical question "fairly set[s] out all of claimant's impairments" that are supported by the record. Id.; Russell v. Barnhart, 58 F. App'x 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question "adequately contemplated all of [claimant's] impairments and resulting limitations" as evidenced by the record).
At the administrative hearing, the ALJ informed Claimant that she had not been able to review an additional 730 pages of records Claimant submitted less than three days before the hearing, she needed to review those documents before questioning the VE, she would send post-hearing written interrogatories to the VE, and she would send the VE's responses to Claimant's counsel. (R. 64). The ALJ submitted written interrogatories to the VE, which included two hypotheticals—one contemplating the ability to perform a reduced range of medium work and the other the ability to perform a reduced range of light work—and a question regarding the effect of three or more unexcused absences on the ability to work. (R. 494-98). The VE responded that the individual under either hypothetical could not perform Claimant's past work but could perform other cited jobs available in the economy. (R. 500-01). The VE also indicated that three or more absences would exceed employer tolerances and, thus, preclude work. (R. 502). The interrogatories and the VE's responses were provided to Claimant's counsel, who was extended an opportunity to submit written comments concerning the evidence, a written statement as to any facts and law applicable to the case in light of that evidence, any additional records for the ALJ to consider, and written questions for the VE. (R. 504-05). Claimant was also extended the opportunity to request a supplemental hearing at which she could appear, testify, produce witnesses, and submit additional evidence and written or oral statements concerning the facts and law. Id. Claimant's counsel responded that he reviewed the VE's responses and did not intend to request a hearing or to submit further evidence. (R. 507).
First, there is no inherent error in the process used by the ALJ to procure VE testimony post-hearing by written interrogatories. "[R]eceiving testimony from a VE through a series of post-hearing written interrogatories is a procedure acceptable and appropriate within the context of the Commissioner's Rules and Regulations." Short v. Colvin, No. 1:12-CV-555, 2015 WL 3485061, at *5 (M.D.N.C. June 2, 2015) (citing Ellis v. Astrue, No. PWG-08-746, 2010 WL 3469819, at *2 (D. Md. Sept. 1, 2010); Starr v. Sullivan, 981 F.2d 1006, 1009 (8th Cir. 1992) (rejecting plaintiff's argument that the ALJ denied him due process in examining the VE through written interrogatories)).
Next, Claimant's contention that she was denied the opportunity to cross-examine the VE is unavailing. Claimant was provided an opportunity to submit in response to the VE's answers any comments, factual or legal argument, additional records, or written questions to the VE or to request a supplemental hearing. Claimant affirmatively opted not to do so. Claimant asserts that her failure was due to the ALJ posing multiple alternative hypotheticals, giving the misleading impression that the ALJ would issue a fully favorable decision based on the finding of "no jobs" in the VE's answers, and failing to indicate which answers would be used in deciding the case. Pl.'s Mem. [DE-32] at 7. "[A]n ALJ is permitted to ask a VE multiple hypotheticals, even if they are contradictory, as such hypothetical questions are not findings of fact, and it is entirely permissible for the ALJ to determine after the hearing which hypothetical is supported by the record evidence." Woodlief v. Berryhill, No. 5:16-CV-191-FL, 2017 WL 9478528, at *5 (E.D.N.C. Aug. 4, 2017) (citing Davis v. Apfel, 162 F. 3d 1154, 1998 WL 559728, at *2 (4th Cir. Sept. 2, 1998) (per curiam); Sizemore v. Colvin, No. 5:15-CV-00053-MOC, 2016 WL 483140, at *4 (W.D.N.C. Feb. 5, 2016)), adopted by 2017 WL 4164076 (E.D.N.C. Sept. 20, 2017). There is nothing misleading or improper in the ALJ's use of the written interrogatories in this case.
Finally, Claimant contends the ALJ's decision refers to "testimony of the vocational expert" when no such testimony was elicited and does not mention all of the VE's answers, specifically that three or more absences would preclude work. Pl.'s Mem. [DE-32] at 7-8. It is apparent that the testimony to which the ALJ refers is the VE's answers to the written interrogatories, which the ALJ cites in the step-five discussion. (R. 25-26). The first hypothetical posed to the VE (R. 500) includes limitations identical to those found in the RFC as determined by the ALJ (R. 21). It is also apparent that the ALJ found the limitation to three or more absences from work was not supported by the record; thus, there was no obligation to include it in the RFC or in the discussion of the VE's written testimony. See Woodlief, 2017 WL 9478528, at *5 (rejecting argument that the ALJ erred by asking the VE a question involving a sit/stand limitation without explaining in the final decision why the limitation was not needed in the RFC). Accordingly, Claimant's arguments regarding the VE testimony are without merit.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-31] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-33] be ALLOWED, and the final decision of the Commissioner 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 April 9, 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 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 26 day of March 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge