Opinion
No. 5:20-CV-55-FL
11-19-2020
BEVERLY MARSHALL, 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-20, -22] pursuant to Fed. R. Civ. P. 12(c). Claimant Beverly Marshall ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). Claimant filed a response to the Commissioner's motion [DE-24], 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 allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on March 8, 2016, alleging disability beginning January 1, 2012. (R. 57, 295-98). Claimant later amended the alleged onset date to May 1, 2017. (R. 318-19). Her claim was denied initially and upon reconsideration. (R. 194-215). A hearing before the Administrative Law Judge ("ALJ") was held on March 14, 2019, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 73-106). On May 8, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 54-72). The Appeals Council denied Claimant's request for review on January 16, 2020. (R. 1-7). 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 erred by (1) failing to incorporate non-exertional limitations on the ability to stay on task, and (2) failing to properly weigh the medical opinion of Claimant's treating physician. Pl.'s Mem. [DE-21] at 8-23.
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 amended alleged onset date of May 1, 2017. (R. 60). Next, the ALJ determined Claimant had the severe impairments of post-traumatic stress disorder ("PTSD"), bipolar disorder, depression, anxiety, and attention deficit hyperactivity disorder ("ADHD"). Id. The ALJ also found the following impairments were non-severe: hyperlipidemia, tobacco use disorder, acute bronchitis, acute maxillary sinusitis, hypercalcemia, hypercholesterolemia, cocaine dependence in full remission, opioid dependence, obesity, benzodiazepine misuse, bilateral plantar fasciitis, carpal tunnel syndrome of the right wrist, bilateral shoulder arthritis, gastritis, and gastroduodenitis. Id. 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. 60-62). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; adapting or managing oneself; and concentrating, persisting, or maintaining pace. (R. 61).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a full range of work at all exertional levels with the following non-exertional limitations:
the claimant can perform simple, routine tasks and can maintain the level of attention and concentration required to perform such tasks. The claimant can occasionally interact with supervisors, coworkers and the public. The claimant can adapt to limited, routine changes in a stable work environment. Due to her mental health symptoms and the symptoms associated therewith, the claimant would be off-task 10% of the work day.(R. 62-66). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence in the record. (R. 63). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work. (R. 66). 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. 67-68).
V. DISCUSSION
A. The ALJ's Accommodation of Claimant's Moderate Limitation in Maintaining Concentration, Persistence, or Pace in the RFC
Claimant contends the non-exertional limitations in the RFC do not sufficiently account for her moderate impairment in the ability to maintain concentration, persistence, or pace. Pl.'s Mem. [DE-21] at 8-16. Specifically, Claimant takes issue with the ALJ's characterization of her mental status examinations as "normal" when her mood and affect were largely noted in the records to be abnormal, id. at 11-13, and the ALJ's failure to explain the determination that Claimant would be off-task for 10% of the workday or, in other words, could stay on-task for 90% of the workday, id. at 13-14. The Commissioner contends that the ALJ properly explained the finding that Claimant could maintain the requisite level of attention and concentration required to perform simple, routine tasks. Def.'s Mem. [DE-23] at 4-7.
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[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 RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence" and also "must include 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)." S.S.R. 96-8p, 1996 WL 374184, at *7; 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 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 632, 638 (4th Cir. 2015) (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]hly 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."); see also Shinaberry v. Saul, 952 F.3d 113, 122 (4th Cir. 2020) (holding that ALJ decision comported with Mascio where ALJ explained why evidence supported mental limitation to simple, routine, repetitive tasks and included limitations in hypothetical to VE); 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).
In applying the special technique at step three, the ALJ concluded that Claimant had a moderate limitation in concentrating, persisting, or maintaining pace. (R. 61). The ALJ explained,
The claimant complained of lack of concentration and distractibility. Her mental status examinations throughout the record showed that her attention was fair/good. However, during her consultative examination, she had trouble with distractibility and paying attention. She had two errors in five steps of serial 3s and she did this task slowly before she stopped and said, "I can't go any further." Additionally, her calculations went as follows: 25+ 12=37, 30+28=58, 48-26=22, 25-15=10 (1F-4F, 6F-10F, 12F-13F & 15F). As such, the undersigned finds that she has a moderate limitation in this area.Id. In assessing Claimant's RFC, the ALJ found that she could maintain the necessary level of attention and concentration required to perform simple, routine tasks when limited to occasional interaction with supervisors, coworkers, and the public; could adapt to limited, routine changes in a stable work environment; and would be off-task 10% of the work day. (R. 62). In formulating the RFC, the ALJ discussed Claimant's testimony, (R. 62-63), Claimant's record of mental health treatment, (R. 63-64), and the opinion evidence, (R. 64-66).
The medical records during the period at issue demonstrates as follows. Claimant participated regularly in opioid dependence therapy sessions throughout 2017 and 2018, where her mood was generally described as stable or congruent but was on occasion noted to be euphoric, expansive, or anxious. (R. 608-719).
In April 2017, Claimant reported that before starting Abilify she could not work due to depression but that she was doing well and had cut back on her Abilify medication due to concerns for weight gain. (R. 445). At that appointment her mood was "euthymic" or, in other words, not manic or depressed, and her attention was "good." Id. At a May appointment, Claimant reported the loss of her job due to the inability to perform daily tasks, forgetfulness, and careless mistakes, but her mood was again noted to be euthymic and her attention good. (R. 443). On June 8, Claimant reported difficulty maintaining employment due to "mood lability," or, in other words, uncontrolled mood, but her mood was noted to be euthymic and her attention good. (R. 441). In June, Claimant sought further treatment for anxiety and inquired about changing medications. (R. 437-38). Claimant was experiencing increased stress due to financial and family challenges and indicated Xanax and Klonopin had been effective in the past. (R. 438). At that time her mood was noted to be euthymic and her attention good. (R. 438). Xanax was started on a temporary basis to target her current situational anxiety and stress. Id. At an August 8 appointment for medication refills, Claimant reported ongoing mood lability, requiring assistance from family for daily tasks, and difficulty with memory, and her medication was adjusted. (R. 555-56). Her mood was noted as anxious, sad, and improving, and her attention was good. (R. 555). On August 17, Claimant's doctor noted she was anxious, and her mood was dysphoric. (R. 722). In October, Claimant reported increased anxiety, panic attacks, and depression, and her medications were adjusted. (R. 552-53). Her mood was noted as anxious, sad, and improving, and her attention was good. (R. 553). By December, Claimant reported her mood was stable and she was doing well on her medications, but she was still having some memory problems and paranoia. (R. 550).
On January 5, 2018, Claimant reported continued problems with attention, concentration, and short term memory, and her medications were adjusted. (R 766). On January 16, Claimant reported a manic episode, difficulty with memory, and hospitalization for mania due to a substance abuse relapse. (R. 547). Her mood was noted as anxious, sad, and improving, and her attention was good. Id. Her medications were adjusted, including starting Lithium. Id. In February, Claimant reported labile mood but that she ran out of Lithium, which was well tolerated, and she needed a refill. (R. 543). Her mood was anxious, and her attention was fair. (R. 544). In March, Claimant reported ongoing mood lability, but she had not been taking her prescribed Lithium, her mood was anxious, and her attention was fair. (R. 541). In April, Claimant reported no concerns, but her mood was anxious. (R. 538). She indicated Lithium helped her mood but made her feel like she was in a trance. Id. In May, Claimant expressed mood lability, decreased focus, and concerns with weight gain. (R. 535). Her mood was anxious, her attention was fair, and she was started on Topamax to address her mood and weight concerns. Id. At a routine appointment in September, Claimant again reported concerns for weight gain related to her medications and noted that she was hospitalized in July due to a manic episode. (R. 532). Her mood was anxious, her attention was fair, and she was restarted on Lithium and taken off Cymbalta. Id. At her October appointment, Claimant reported her mood was stable, but she was concerned with her memory, such as forgetting her grandson's name and forgetting to turn off the stove, although it was noted that these concerns were not new and had not worsened. (R. 529). Claimant's Topamax dosage was increased. Id. In December, Claimant requested treatment for ADHD because she was having difficulty finishing tasks and had ongoing memory concerns, and her medications were adjusted. (R. 777-78).
On January 7, 2019, Claimant's depression was improved, her mood was more stable, and she indicated Aricept was helpful for memory. (R. 774-75). At a January 20 therapy appointment, Claimant reported "feeling good" despite still experiencing levels of anxiety. (R. 604). On January 24 and February 14, Claimant was seen in follow-up for her opiate dependence treatment and reported her mood was stable and congruent, and she had no anxiety. (R. 601, 603). On February 18, Claimant stated her medications were working fine, and she had improved mood lability with an increase in Lithium. (R. 771-72).
Claimant first takes issue with the ALJ's characterization of her mental status examinations as "normal." Pl.'s Mem. [DE-21] 11-13. Reading the ALJ's opinion as a whole, it is apparent that the ALJ recognized there were times when Claimant's mental status examinations were not normal. See, e.g., (R. 63) (noting the record demonstrated a mental health history that included depression, panic disorder, ADHD, and anxiety, and Claimant's mental status examinations were "fairly normal" throughout treatment in 2017 with occasional anxious and sad mood); (R. 66) (noting that on occasion Claimant had anxious mood and affect). The ALJ discussed the treatment records, pointing out that Claimant's complaints related to her mood, memory, and concentration were addressed with medication changes and that she ultimately responded well to medication and counseling. (R. 63-64). However, despite the noted improvement, the ALJ still found that Claimant's mental health symptoms would keep her off task 10% of the workday. (R. 66). The ALJ did not explain the basis for her determination that Claimant would only be off task for 10% of the workday, and Claimant argues that the failure to do so was error requiring remand. Pl.'s Mem. [DE-21] 13-16. The undersigned agrees that the ALJ's failure to explain her determination that Claimant would be off task 10% of the workday was error and that the error was not harmless.
Nowhere in the decision does the ALJ explain how she arrived at the 10% figure, there is no opinion evidence in the administrative record to support the finding, and the Commissioner does not address the issue. "While an ALJ is not obligated to base each conclusion in the RFC assessment on a specific piece of evidence, 'a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion,' and '[t]he second component, the ALJ's logical explanation, is just as important as the other two."" McNeely v. Saul, No. 2:20-CV-00158, 2020 WL 5648214, at *8 (S.D.W. Va. Sept. 4, 2020) (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019), as amended (Feb. 22, 2019)), adopted by 2020 WL 5649483 (S.D.W. Va. Sept. 22, 2020). Several courts within the Fourth Circuit, including this one, have found that the ALJ's failure to explain the determination that a claimant would be off task for a certain percentage of time left the court unable to conduct a meaningful review of whether the determination was supported by substantial evidence. Id. at *8-9 ("[I]t is impossible for the reviewing Court to determine if the ALJ's assessment that Claimant would be off-task for less than nine percent of the workday is supported by substantial evidence without knowing the basis for the figure.") (collecting cases); see, e.g., Roof v. Saul, No. CV 5:19-1571-MGL-KDW, 2020 WL 3549206, at *10 (D.S.C. June 23, 2020) (finding "the ALJ's specific percentage limitation to being off-task is the type of limitation that properly accounts for a claimant's difficulties in concentration, persistence, and pace in that it accounts for the claimant's ability to stay on task" as required by Mascio v. Colvin, but that "the ALJ erred by failing to explain the source of his finding that Plaintiff would be off task nine percent of the day."), adopted by 2020 WL 3548814 (D.S.C. June 30, 2020); Gragg v. Saul, No. 1:19-CV-00129-RJC, 2020 WL 3259177, at *4 (W.D.N.C. June 16, 2020) (remanding the case where the ALJ failed to "explain how he determined Plaintiff will be off-task nine percent of the time or how he determined Plaintiff's concentration is greater than two hours in an eight-hour workday," leaving the court to speculate as to how the ALJ arrived at the determination); Richardson v. Saul, No. 4:19-CV-00128-FL, 2020 WL 3816317, at *6 (E.D.N.C. June 9, 2020) (concluding the case must be remanded because the ALJ's finding that the claimant would be off task up to nine percent of the day due to medication side effects "does nothing to inform a reviewing court of how ALJ Anderson arrived at the figure-nine percent of the workday-or what evidence in the record supports this calculation"), adopted by 2020 WL 3799344 (E.D.N.C. July 7, 2020); Higgs v. Berryhill, No. 4:18-CV-22-FL, 2019 WL 848730, at *5 (E.D.N.C. Jan. 10, 2019) (finding error where the ALJ offered no explanation for his conclusion that the claimant would be off task only ten percent of the time and did not "build an accurate and logical bridge from the evidence to his conclusion.") (citation omitted), adopted by 2019 WL 845406 (E.D.N.C. Feb. 21, 2019). The ALJ's determination that Claimant would be off task no more than 10% of the workday was material because the VE testified that an employer would tolerate up to 10% off-task behavior but that anything beyond that would be preclusive of employment. (R. 101-02). Thus, the error was not harmless, and the ALJ's failure to sufficiently explain the finding regarding Claimant's ability to stay on task, in violation of Mascio, requires remand.
B. The ALJ's Evaluation of the Opinion Evidence
Claimant argues that the ALJ erred by failing to properly weigh the opinion of Claimant's treating physician, Dr. Linda Hughes, and the opinion of the North Carolina DHHS, Division of Vocational Rehabilitation Services. Pl.'s Mem. [DE-21] at 16-21.
1. Opinion of Dr. Hughes
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 404.1527(c)(2).
The rules for evaluating opinion evidence for claims filed after March 27, 2017 are found in 20 C.F.R. § 404.1520c, but 20 C.F.R. § 404.1527 still applies in this case.
When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" it is given controlling weight. Id. However, "[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig, 76 F.3d at 590. If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527).
In October 2015, Claimant saw Dr. Hughes in follow-up to her disability appeal. (R. 522). Claimant indicated her claim for benefits had been denied, and she intended to appeal. Id. Dr. Hughes noted that Claimant was in counseling once a month, she took increased doses of Celexa and Gabapentin, she was continued on Adderall, and her Clonazepam was changed to Alprazolam. Id. Claimant was observed as alert and oriented to person, place, and time but anxious. Id. Dr. Hughes recounted some of Claimant's reported issues maintaining employment in 2007, after which she was out of work for two years, and in 2009 when she attempted another job but was asked to resign during the training period. Id. Dr. Hughes then addressed Claimant's limitations related to her ability to work:
[C]urrently, she is no longer able to manage her own banking - her son is taking care of her accounts. She is unable to perform simple calculations. On today's visit she is unable to recall the names of her medications until prompted with the name. She is easily distracted and finds it difficult to resume the topic. She is unable to read a newspaper article and recall what she has read. She fears she is developing dementia because of her poor short term memory. She recalls only one of 3 objects at 2 minutes. She is having obsessive behaviors - calling her grown children more than 10 times in the same day to discuss the same things. She repeatedly checks locks and the stove because she cannot recall performing tasks. She has an irrational fear of disaster striking her children when she hears of a tragedy in the news and will call her children repeatedly to check on their welfare. I believe her lack of short term memory, difficulty with concentration and with learning new material make her disabled for any occupation. I suggest evaluation through Vocational rehab. F/U as needed.Id. The ALJ evaluated the opinion as follows:
In March 2015, Linda Hughes, MD the claimant's doctor, opined that the claimant's lack of short term memory and difficulty with concentration and learning new material made her disabled for any occupation (6F, 7F & 9F). The undersigned gives little weight to her opinion, as it fails to provide any functional limitations and it is inconsistent with her own examinations where she noted that the claimant was anxious but she was alert and oriented with appropriate mood, normal attention span, concentration, insight and judgment. Lastly, she opined on an area reserved for the Commissioner (6F-7F).(R. 65). Thus, the ALJ discounted the opinion for three reasons—it failed to provide functional limitations, it was inconsistent with examinations, and it was on an issue reserved for the Commissioner.
The ALJ stated the opinion was from March 2015 but, as both parties acknowledge, it was from October 2015. See (R. 522).
First, Dr. Hughes's statement that Claimant was "disabled for any occupation" is an issue reserved to the Commissioner. See S.S.R. 96-5p, 1996 WL 374183, at *5 (July 2, 1996) ("The judgment regarding the extent to which an individual is able to perform exertional ranges of work goes beyond medical judgment regarding what an individual can still do and is a finding that may be dispositive of the issue of disability. . . . [T]he overall RFC assessment is an administrative finding on an issue reserved to the Commissioner."); Slaydon v. Saul, No. 7:18-CV-54-FL, 2019 WL 3660573, at *5 (E.D.N.C. Aug. 6, 2019) ("Medical source opinions on issues reserved to the Commissioner are not entitled to any weight."); Watson v. Berryhill, No. 5:17-CV-579-RJ, 2018 WL 6600209, at *1 (E.D.N.C. Dec. 17, 2018). The ALJ did not dismiss the opinion outright on this basis but considered it and provided other reasons for discounting it. Therefore, the ALJ did not err in considering that Dr. Hughes opined on an issue reserved for the Commissioner.
Next, Claimant contends that the opinion does contain functional limitations, such as her inability to perform simple calculations, her inability to recall her medications without prompting, and her distractibility. Pl.'s Mem. [DE-21] at 17. Claimant's lack of short term memory and difficulty with concentration and with learning new material are symptoms that may cause functional limitations in Claimant's ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. However, Dr. Hughes did not opine on such functional limitations; rather, she concluded Claimant was disabled and unable to work, which are issues reserved for the Commissioner. Therefore, the ALJ appropriate considered that Dr. Hughes failed to opine on functional limitations resulting from Claimant's impairments.
Finally, Claimant contends the opinion is consistent with Dr. Hughes's examination findings that showed abnormal mood and affect and other signs of mental impairment. Pl.'s Mem. [DE-21] at 17-19. Claimant points to a March 5, 2015 treatment note where Claimant reported having nightmares and not sleeping well, having had two breakdowns of uncontrolled crying and anxiety, having days where she could not get out of bed due to fear, having panic attacks when she tries to stop smoking, having difficulty with focus and concentration, and needing frequent reminders to stay on task. (R. 393-94). However, Dr. Hughes also noted that on examination Claimant was alert and oriented to time person, and place; her mood was anxious but appropriate to the situation; and her attention span and concentration were normal. (R. 394). Therefore, the ALJ's determination that Dr. Hughes's opinion was inconsistent with her examination findings is supported by the record. The court also notes that Dr. Hughes's opinion predates Claimant's alleged onset date by approximately 19 months, and the ALJ found that more recent records demonstrated Claimant was stable on her medication regimen with improved depression and memory. (R. 66, 601-04, 771-75). "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)). Accordingly, the ALJ did not err in weighing Dr. Hughes's opinion.
2. Opinion of NC DHHS Vocational Rehabilitation Services
In the case of Bird v. v. Comm'r of Soc. Sec. Admin., the court found that although another agency's "decision is not binding on the [Social Security Administration ("SSA"),] . . . under the principles governing SSA disability determinations, another agency's disability determination 'cannot be ignored and must be considered.'" 699 F.3d 337, 343 (4th Cir. 2012) (citing 20 C.F.R. § 404.1504 & S.S.R. 06-03p, 2006 WL 2329939 (Aug. 9, 2006)).
On January 10, 2019, the North Carolina Department of Health and Human Services, Division of Vocational Rehabilitation Services issued a letter stating that Claimant was,
eligible to receive services that will enable [Claimant] to work because . . . [Claimant] has difficulty performing functional communications required for completing job applications and participating in interviews (complete job applications, interview) without simple accommodations or short-term interventions. Unable to establish or maintain appropriate interactions with
coworkers and supervisors without prescribed medication. Unable to concentrate on the job for minimal periods of time in order to make appropriate work related decisions, to problem solve effectively on the job, and/or to complete multi-step work tasks without being easily distracted as a result of the disabling condition or medications prescribed to treat the disabling condition.(R. 364). The ALJ evaluated the opinion as follows:
The North Carolina Department of Health and Human services submitted a letter noting that the claimant had difficulty performing functional communications required for completing job applications and participating in interviews without simple accommodations or short term[] interventions. She was unable to establish or maintain appropriate interactions with coworkers and supervisors without prescribed medication and she was unable to concentrate on the job for minimal periods of time in order to make appropriate work related decisions, to problem solve effectively on the job, and/or to complete multi-step work tasks without being easily distracted as a result of the disabling condition or medications prescribed to treat the disabling condition (9E-10E, 12E & 14E). The undersigned gives partial weight to this opinion to the extent it determined that the claimant was easily distracted, as this consistent with her inability to complete serial 3s during her consultative examination and the consultative examiner note that the claimant had trouble with distractibility and paying attention. Otherwise, little weight is given to the remainder of the opinion, as the author of the opinion is unknown and the letter does not reference any specific evidence to support its conclusion. Additionally, the remainder of the opinion is inconsistent with the claimant's fairly normal mental status examinations throughout the record which reflect only occasional anxious mood and affect but cooperative behavior, fair/good attention, insight and judgment and no delusions, hallucinations or suicidal/homicidal ideations. It is also inconsistent with her conservative, routine treatment with no psychiatric related hospitalizations (1F-2F, 4F, 6F-10F, 12F-13F & 15F).(R. 65).
The ALJ appropriately considered the fact that the opinion, which appeared to contain additional pages not included in the record, did not reference any specific evidence to support its conclusions. See Dunn, 607 F. App'x at 268 ("[T]he more the medical source presents relevant evidence to support his opinion, and the better that he explains it, the more weight his opinion is given.") (citation omitted); 20 C.F.R. § 404.1527(c)(3) (listing supportability as a factor in evaluating any medical opinion). Furthermore, as discussed above, reading the ALJ's opinion as a whole, it is apparent that the ALJ recognized there were times when Claimant's mental status examinations were not normal but that Claimant's complaints related to her mood, memory, and concentration were addressed with medication changes and that she ultimately responded well to medication and counseling. (R. 63-64). Claimant also takes issue with the ALJ's statement that she had no psychiatric related hospitalizations and noted two treatment notes from January and September 2018 that referenced Claimant was hospitalized for mania. Pl.'s Mem. [DE-21] at 23. It appears the ALJ was referring to the fact that, at the administrative hearing, Claimant denied having any inpatient hospitalizations for her mental health issues. (R. 91). Additionally, the treatment notes indicate Claimant's mania and hospitalizations were triggered by a substance abuse relapse. (R. 532, 547). Finally, the ALJ's RFC makes accommodations for Claimant's limitations noted in the Vocational Rehabilitation opinion regarding interactions with coworkers and supervisors, making work related decisions, problem solving, and completing multi-step tasks. The ALJ limited Claimant to performing simple, routine tasks with only occasional interaction with supervisors, coworkers, and the public and only limited, routine changes in a stable work environment. (R. 62). Accordingly, the ALJ sufficiently explained the weight given to the Vocational Rehabilitation opinion, and the determination is supported by the record.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-20] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-22] be DENIED, and the matter be remanded to the Commissioner for further proceedings.
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 December 3, 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 19th day of November, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge