Opinion
Civil Action No. 6:18-1389-BHH-KFM
04-22-2019
Lisa Jane Moseley, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on January 5, 2015. In both applications, the plaintiff alleged that she became unable to work on December 15, 2009. Both applications were denied initially and on reconsideration by the Social Security Administration. On May 29, 2015, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Mark Leaptrot, an impartial vocational expert, appeared on March 30, 2017, considered the case de novo, and on May 19, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 15-24). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on April 5, 2018 (Tr. 1-3). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
(2) The claimant has not engaged in substantial gainful activity since December 15, 2009, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: affective disorder and anxiety disorder (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: Work is limited to simple, routine, and repetitive tasks; performed in a work environment free of fast-paced production requirements; involving only simple, work-related decisions, and with few, if any, work place changes; capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting; the individual can perform simple tasks for two hour blocks of time with normal rest breaks during an eight hour workday; with only occasional interaction with the public and coworkers.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on August 2, 1966, and was 43 years old, which is defined as a younger individual age 18-49,
on the alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from December 15, 2009, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
Evidence Before the ALJ
The plaintiff was 43 years old on her alleged disability onset date (December 15, 2009) and 50 years old at the time of the ALJ's decision (May 19, 2017). She completed high school and has past work as an x-ray technician (Tr. 22).
On August 8, 2010, the plaintiff was brought to Greenville Memorial Hospital emergency room for evaluation of depression and suicidal ideation. She presented as very depressed and tearful. She stated that just days prior, her daughter lost custody of her child due to her drug abuse. The plaintiff had lost physical custody of her grandchild to her son-in-law. She reported that she sold her home and had to move in with her parents. She had lost her job as a radiology assistant the year prior due to increased absenteeism and had been unable to regain financial stability. She reported that she had been on numerous antidepressants but felt that none had worked. She stated that she was easily agitated, yelled at others, felt feelings of hopelessness, despair, and worthlessness. She denied any hallucinations. She admitted that her depression had become so severe that two nights prior to her hospital visit, she had locked herself in her bedroom with a gun. She began to think of her grandchild and decided to put the gun away. After further assessment, it was determined that the plaintiff should be committed. On examination, the plaintiff was cooperative and fully oriented, exhibited normal insight, concentration, judgment and memory; and organized and appropriate thought content (Tr. 296-322).
The plaintiff was admitted to Patrick B. Harris Hospital in Anderson, South Carolina and initially evaluated by Praveen Madadi, M.D. Dr. Madadi noted that the plaintiff had battled depression for more than ten years and was not compliant with her medications or followup treatment. Dr. Madadi noted that the plaintiff's most recent breaking point came when she had to give up custody of her grandson. Dr. Madadi stated that this event left the plaintiff "feeling extremely depressed, hopeless and worthless with decreased energy, no motivation, and anhedonia. She had increased crying spells and three days ago, she was having suicidal thoughts with plans to shoot herself with a gun." During her stay in the hospital, the plaintiff repeatedly denied any suicidal ideation and said she was "very upset" about giving up custody of her grandchild but would never hurt herself. The plaintiff was pleasant and interacted with peers, slept well, and tolerated the medication. Dr. Madadi noted that the plaintiff had tested positive for benzos and cannabis. The plaintiff admitted using cannabis once on August 2, 2010. Dr. Madadi diagnosed the plaintiff with anxiolytic dependence, physiologic dependence, cannabis abuse, depressive disorder and gave her a global assessment of functioning ("GAF") score of 30. Dr. Madadi prescribed Effexor XR 37.5 mg, trazodone 50 mg, and Ativan 2 mg. He stated that once the plaintiff was stabilized on medication and not in imminent danger to herself then she would be discharged (Tr. 319-23).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 41 and 50 indicates serious symptoms or a serious impairment in social, occupational, or school functioning. Id. A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id.
The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF score for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On August 11, 2010, after being discharged from the hospital, the plaintiff was assessed by Wilberforce Tamaklo, M.D. During the assessment, she repeatedly denied suicidal ideations. She admitted that she was very upset about giving up custody of her grandchild, but she never thought of hurting herself. She admitted that she needed help to deal with some of her losses. She demonstrated some insight into her benzodiazepine and marijuana use. She was pleasant on the unit and interacted with her peers. She slept well at night, and her appetite was good. She was not lethargic. She tolerated Effexor, which was increased to 75 mg daily. She was to continue outpatient treatment and maintain sobriety. Dr. Tamaklo's diagnosis was depressive disorder with a GAF of 55 at the time of discharge (Tr. 320).
A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id.
On November 10, 2011, the plaintiff sought treatment at Aiken-Barnwell Mental Health ("ABMH") for her depression. She was initially assessed by Harry T. Douglas. Mr. Douglas noted that the plaintiff reported she had battled depression for years but had never received any formal treatment. She stated that her doctor, George Pursley, M.D., had attempted to treat her mental problems but ultimately instructed her to see a psychiatrist. Mr. Douglas noted that Dr. Pursley had prescribed Cymbalta, which the plaintiff took and then stopped cold-turkey. She then became suicidal and was committed to Patrick B. Harris Hospital. Dr. Pursley then put her on Lamictal and Klonopin, which she reported helped "some." Mr. Douglas stated that the plaintiff was employed as a radiology assistant but was fired from her job, which increased her depression. Her appearance was appropriate; she was cooperative and fully oriented; she had an anxious, depressed mood, normal speech, and intact attention, concentration, and memory with no suicidal ideation (Tr. 387-88).
On December 20, 2011, the plaintiff was evaluated by Patricia Watkins, M.D., at ABMH. Dr. Watkins stated that the plaintiff reported receiving treatment for her depression since her twenties. She further reported that she had taken many antidepressants including Cymbalta, Lexapro, Zoloft, Wellbutrin, and Paxil, but only received short term relief of symptoms. Dr. Watkins noted that more recently, the plaintiff was prescribed Lamictal and Klonopin by her primary care doctor. She reported compliance with the medication and admitted that she felt less depressed since starting the Lamictal. She denied any adverse side effects. The plaintiff denied any other history of suicide attempts or deliberate self-harm behavior. She reported she has 'always had issues with sleeping' and reports decades-long [history] of restless sleep with frequent brief awakenings. She reported that during the last five years she was "lucky if I get 3 nights of fairly decent sleep." She estimated her maximum sleep time as three hours per night, three nights a week. "I just lay in bed and my mind races and rambles all night long." She sometimes heard her name being called or low mumbled voices in conversation. On examination, the plaintiff was alert, oriented, and cooperative; her attention, concentration, and memory were intact; she had an appropriate affect, good judgment, and logical/goal directed thought process. She denied hallucinations. She denied recurrent suicidal ideation, intent or plan. She denied violent ideation, intent or plan toward anyone. Physicians prescribed Lamictal, Klonopin, and Seroquel (Tr. 334-36).
The plaintiff presented as clean and well-groomed. She had an angry tone of voice and demeanor but related adequately. She maintained good eye contact, and her speech was regular rate and rhythm. Her affect was dramatic and tearful throughout the evaluation. Dr. Watkins diagnosed her with major depressive disorder, recurrent, severe, without psychotic features and borderline personality disorder. Dr. Watkins noted that the symptoms that needed to be targeted for treatment were anxiety, depression, irritability, suicidal ideation/attempts, sleep/appetite disturbance, and trauma. Dr. Watkins felt that individual and group therapy would be the best treatment along with medication monitoring. Dr. Watkins also increased the plaintiff's dosage of Lamictal and added Seroquel XR (Tr. 335-36).
On February 27, 2012, the plaintiff returned to ABMH and was seen by Charles Baber, III, M.D. She reported continued sleep problems even on the Seroquel. The plaintiff was alert, oriented, and cooperative; her attention, concentration, and memory were intact; she had an appropriate affect, no suicidal ideation, and denied having hallucinations or delusions. She had problems with goal direction. Dr. Baber stated "[patient] is showing a lot of her personality disorder syndrome today, claiming she cannot sleep for 7 days but then stating she has been in bed for 30 days." Dr. Baber prescribed trazodone to take in addition to her current medicine regimen to combat sleeplessness and depression (Tr. 338). The plaintiff returned on June 25, 2012. She stated she had improved a lot and was sleeping better. Her mood swings had improved. The plaintiff's mental status examination was normal. Dr. Baber instructed her to return in four months (Tr. 339-40).
The plaintiff continued to see Dr. Baber over the next year for treatment of her depression, noting improvement in her sleep and her depressive symptoms. She had no problems with her medications. She felt that taking Lamictal was the major change in her feeling better. Mental status examination was normal, including no suicidal ideation. Dr. Baber advised that the plaintiff would benefit from individual and group therapy, but she refused (Tr. 338-46).
On October 3, 2013, the plaintiff demanded a letter from her counselor stating that she was disabled. On October 4, 2013, Dr. Baber noted that the plaintiff was last seen five months earlier when no changes were made to her medication. The plaintiff reported to Dr. Baber that she only took trazodone when she was unable to sleep. She was alert and oriented with no signs or symptoms of psychosis. Her attention, concentration, and memory were intact; she had a euthymic mood, appropriate affect, no hallucinations or delusions, logical/goal directed thought process, and no suicidal ideation. Under "extra notes," Dr. Baber noted that despite the plaintiff's request for a letter that she was disabled, it was denied because she was not disabled at this point (Tr. 346-47).
On January 23, 2014, during an exam ination with Dr. Baber, the plaintiff stated that her daughter had died at the end of October 2013. The police had ruled her daughter's death a suicide, but her death was still being investigated. She had run out of Seroquel when she was out of town because of her daughter's death. Her judgment and insight were poor. Her attention, concentration, and memory were intact, and she had an appropriate affect, no hallucinations or delusions, logical/goal directed thought process, and no suicidal ideation. Dr. Baber stated "The [patient] is given a statement that she is totally and permanently disabled so she can get her food stamps restarted. After further consideration it is felt she would not be able to return to the work force. She is advised to call the help line, 911 or go to the ER for possible admission if she has a decompensation in her mental status." On that same date, Dr. Baber wrote on a South Carolina Department of Mental Health prescription form that the plaintiff was totally and permanently disabled and should receive food stamps (Tr. 325, 350-51).
In her January 27, 2015, function report, the plaintiff wrote that she had severe depression and prepared her own meals daily; cooked, cleaned, and did laundry; rode in cars and walked; drove; shopped for food; spent time with others; watched television and movies; had poor relationships with family members; kept to herself; felt confused; and was easily distracted (Tr. 239-44).
On May 22, 2014, Dr. Baber noted that the plaintiff's depression was "somewhat treatment resistant requiring the need for an atypical antipsychotic for maintenance." The plaintiff again refused to attend any therapy sessions even though she could benefit from them. She reported that she was not doing well, she was "very emotional," and going through stages. She was seen with her mother, who stated that the plaintiff needed to be on disability and that the main goal was to get her income from a source other than her mother. Dr. Baber noted that the plaintiff's attention, concentration, and memory were intact; she had an appropriate affect, no hallucinations or delusions, and logical/goal directed thought process; and she had chronic suicidal ideation (Tr. 352-54).
On September 18, 2014, Dr. Baber stated: "She states she is getting by day by day. She still has not applied for Disability and mainly keeps to herself. She states she continues to have some sleep problems . . . ." She stated that October would be the anniversary of her daughter's passing. She continued to refuse offers for individual and group therapy. Dr. Baber noted the plaintiff's history of major depressive disorder, recurrent, severe without psychotic features and borderline personality disorder. She had normal appearance and speech, normal and concrete thought process, cooperative and calm demeanor; intact associations, memory, and attention; mildly impaired concentration; and suicidal ideation with no plan. On January 20, 2015, Dr. Baber noted that another attempt was made to get the plaintiff to go to a group program and to restart therapy, but she refused. Her mental status examination was essentially normal. Dr. Baber noted that she requested and received another statement that she was disabled "for her food stamps" (Tr. 357-60).
On March 17, 2015, the plaintiff was seen at ABMH by Wanda Rowland, R.N. Ms. Rowland stated that the plaintiff appeared neat and clean. She reported that she had been depressed and had a lot of anxiety due to her daughter's death, which was always on her mind. She reported that "it hits me worse in the evenings . . . I am just a ticking time bomb." She talked about her daughter a lot and reported that her son was back on drugs, which was upsetting. She reported that it was hard for her to concentrate enough to have a conversation. She denied suicidal ideation. She reported that her sleep and appetite are adequate. She woke up often during the night. She would return in May to see Dr. Baber (Tr. 371).
On March 18, 2015, state agency psychologist Debra Price, Ph.D., reviewed the evidence of record and opined that the plaintiff could perform simple, repetitive tasks and maintain concentration and attention for at least two-hour periods in a setting that did not require ongoing interaction with the public. Dr. Price opined that the plaintiff's affective disorders were severe, and her personality disorder was a non-severe medically determinable impairment (Tr. 65-69).
On May 6, 2015, state agency psychologist Craig Horn, Ph.D., reviewed the record and updated evidence in connection with the plaintiff's disability reconsideration request and affirmed Dr. Price's opinions (Tr. 92-93, 97-98). Drs. Price and Horn considered Dr. Baber's statements that the plaintiff was totally and permanently disabled and that she could not return to the workforce and noted that up until that time, doctors had reflected the plaintiff's improvement (Tr. 66, 94).
On May 13, 2015, the plaintiff returned to Dr. Baber and stated that her son was back on drugs, and she was not sleeping. She did not report any suicidal ideations but stated she did not care if she lived or not. She also reported that she was being kept from seeing her grandchild. Dr. Baber noted that she needed to see a therapist, but she continued to refuse. On examination, her mood was depressed and angry and she exhibited poor judgment and insight. She was cooperative, depressed, and angry with intact memory, attention and concentration, and normal speech, calm behavior, and logical, goal directed thought process. She denied suicidal ideation. Dr. Baber changed the plaintiff's primary diagnosis to borderline personality disorder. Dr. Baber also stated that the plaintiff needed to see an intake worker to get set up for therapy (Tr. 395-96).
On July 21, 2015, the plaintiff was seen at Mental Health in Anderson and was initially evaluated by psychiatrist Michael Tran, M.D. Dr. Tran noted that she continued to have frequent uncontrollable crying spells and experienced daily mental pain. She talked about her daughter's death and having excessive guilt because she was not available to her daughter the day she died. The plaintiff was cooperative and had logical, goal-directed thought process, intact memory, attention, and concentration, fair judgment, and poor insight. She denied active suicidal ideations but reported feelings of hopelessness about her situation. The plaintiff was essentially homeless but was staying with a friend temporarily. Dr. Tran started her on Zoloft 25 mg (Tr. 393-94).
On October 20, 2015, the plaintiff returned to Dr. Tran. She noted that the anniversary of her daughter's death was in the upcoming week and that she has had difficulty letting things go. She reported that her son was doing better, but she still worried that he may overdose due to his drug addiction. She continued to experience crying spells frequently and stated that "every [day] is a struggle for her to get things done." She was depressed, and her mental status was otherwise fairly normal, but for mild attention and concentration impairment. Dr. Tran noted that the plaintiff was unable to work. She recently went to the free clinic and was told that she had elevated liver enzymes possibly due to the Lamictal, so Dr. Tran agreed to discontinue it (Tr. 391).
On a January 7, 2016, Dr. Tran noted that the plaintiff had mild improvement in terms of her mood lability. He stated that her "depression is so debilitating that she is not able to work . . . says loss of daughter exacerbated her [symptoms]. Says mostly spent time ruminating over her life failure." (Tr. 389). On April 6, 2016, she returned for followup with Dr. Tran and reported the death of her father. She stated that he had suffered a massive stroke, but she was surprised that she had handled the grieving process as well as she did. She also reported an improved relationship with her son. She stated that she had continued to improve since being on Suboxone. Dr. Tran noted that the plaintiff continued to stay with her mother and friends, although due to the strained relationship with her mother, she stated that she could not stay with her for too long. Her mood lability had somewhat improved, but she continued to have issues with anxiety. Her mental status was essentially normal. Dr. Tran prescribed Neurontin (Tr. 422). On September 27, 2016, Dr. Tran noted that the plaintiff was spiraling further into depression. She reported that her son was back on drugs. She was tearful and said she lost "her way and spirit" after losing her job and her home. She reported still grieving her daughter. She stated she had not found closure because she thought that her daughter was murdered. She thought part of herself died the day she lost her daughter. She had not gone to therapy since she thought it was ineffective. She was hyper-verbal during interview and later said that she needed to validate her thoughts and feelings. She agreed to continue therapy. She complained of not sleeping. Her mental status was essentially normal. Dr. Tran switched her trazodone to Remeron (Tr. 427).
On December 14, 2016, at a followup with Dr. Tran, the plaintiff reported that she was depressed over the holiday season due to the loss of her daughter and father. She thought of her daughter daily and worried that her son would eventually die as well because of his drug addiction. Her mental status was essentially normal. She was no longer taking Zoloft or Neurontin. She occasionally took trazodone, and reported that Remeron seemed to make her more anxious. She continued with Seroquel (Tr. 425).
On March 30, 2017, the plaintiff appeared and testified at the administrative hearing. When asked by the ALJ why she was unable to work, she stated she had a really hard time keeping intact. That she was just broke because a lot happened to her in a short time beginning in 2008. She had a hard time concentrating. Carrying on an extensive conversation was very difficult. She had a lot of trouble and her mind would not settle. She had trouble sleeping and was sometimes up all night. She stated that some nights her medicine worked, some nights it did not (Tr. 41-42).
The plaintiff elaborated that in 2008 her daughter, who was a senior in high school at the time, had become pregnant. After her grandson was born, her daughter became addicted to drugs and the plaintiff obtained custody of her grandson. She sent her daughter to drug treatment. She testified that during this time she cried every day on her job and was unable to control her emotions. She stated that this led her to have a verbal altercation with her supervisor and she was terminated (Tr. 39, 42).
The ALJ then questioned the plaintiff regarding her activities of daily living. The plaintiff testified that she cooked, cleaned, bathed, and dressed herself. She stated that she did occasional yard work and shopped for food when necessary. She testified that she did not socialize with friends or family except for holidays. She would only occasionally go out to eat due to her finances. The plaintiff further testified that she only bathed and changed her clothes once a week. She testified she was unable to work because she had to deal with people and society. She was capable of going to a store and getting the things she needed. She was capable of being respectful to people in the store. She stated that sometimes in the store she was flipping out in her mind because somebody would be right behind her. She went through stages where she would not leave the house for two weeks or a month. Sometimes she was out everyday. She stated that she had issues with people and that she had cut so many people out of her life. She testified that she continued to take Seroquel and trazodone, however, she felt that neither really helped control her anxiety. The Seroquel only helped her sleep but not consistently. She stated that even with taking the medication she would only sleep three hours at most, some nights not at all. She testified that she has gone a couple of days with no sleep. She testified that there were side effects to the medicines she took. She would get an occasional headache, and it was difficult for her to wake up in the mornings after taking the medication. She also stated that she would experience dry mouth with the medicine (Tr. 43-52).
The plaintiff further testified that she continued to have thoughts of suicide on a daily basis, but did not tell her doctor for fear that she will be committed again. She admitted to continued cannabis use to help relax so that she could sleep. She stated: "it helps my mind stop racing so . . . mind never stops . . . I'm tormented" (Tr. 51-52).
At the hearing, the ALJ asked the vocational expert about jobs available for a hypothetical person of the plaintiff's same work experience, who does not have any exertional limitations, but is limited to simple, routine, and repetitive tasks performed in an environment free of fast paced production requirements, with few, if any, work place changes, who is capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting, who can perform simple tasks for two-hour blocks of time with normal breaks during an eight-hour day and who has only occasional interaction with public and co-workers. The vocational expert testified that the individual would not be able to return to any past relevant work; however, the vocational expert testified that there were jobs available in the national economy for such an individual, including office helper, routing clerk, or shipping and receiving weigher. The ALJ then asked the vocational expert to consider that the individual would be off task 20% or more of the work day due to severe mental impairments. The vocational expert testified there would be no jobs available to that individual. The plaintiff's attorney then asked the vocational expert to consider the individual's ability to perform those jobs if the individual would be absent three or more days per month. The vocational expert again testified that there would be no jobs available (Tr. 55-57).
Appeals Council Evidence
To the Appeals Council, the plaintiff submitted new evidence in the form of a prescription note completed by her treating psychiatrist Dr. Tran. Dr. Tran's note stated that the plaintiff was "permanent[ly] disable[d] and would benefit from food stamp benefits." (see doc. 13-1). The plaintiff also provided a medical source statement dated July 2017 from Dr. Tran in which he opined that she would only occasionally be able to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, function independently, maintain attention/concentration, and deal with work stressors. He further stated that "patient continues to experience isolation and crying spells. She is emotionally unstable and cannot function in work setting" (doc. 13-2). Dr. Tran stated that the plaintiff would only occasionally be able to perform complex, detailed or even simple job instructions. He stated that in addition to her poor concentration and emotional lability, she has difficulty following job instructions. Due to her emotional instability, Dr. Tran opined that she would only occasionally be able to maintain her personal appearance, behave in a socially stable manner, relate predictably in a social situation, and demonstrate reliability. Dr. Tran opined that her mental impairments would require her to exceed the number of usual breaks in a normal eight-hour work day and would interfere with her completion of a normal work day. Dr. Tran further opined that the plaintiff would be absent from work four or more days per month due to her impairments. Finally, he noted that she was taking Seroquel and trazodone, which could cause sedation (doc. 13-2 at 2-3).
ANALYSIS
The plaintiff argues that the Appeals Council failed to consider new and material evidence and that the ALJ's decision is not supported by substantial evidence because the ALJ failed to properly weigh her treating physician's opinion, and did not follow the "slight abnormality" standard when finding the plaintiff's borderline personality disorder non-severe (doc. 13 at 14-35). The Commissioner, on the other hand, asserts that the Appeals Council did not err in declining to consider the plaintiff's proffered evidence and that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 15 at 11-29). For the reasons set forth in more detail below, the undersigned finds that the Commissioner's decision is based upon substantial evidence and is free of legal error; thus, it is recommended that the Commissioner's decision be affirmed.
Appeals Council
The plaintiff first argues that the Appeals Council erred in failing to consider the new evidence submitted to it (two opinions from the plaintiff's treating psychiatrist Dr. Tran), arguing that the evidence was new and material (doc. 13 at 14-29). The undersigned disagrees.
Effective January 17, 2017, the regulations regarding the consideration of additional evidence by the Appeals Council were amended. See 20 C.F.R. §§ 404.970(b); 416.1470(b) (effective Jan. 17, 2017). The new regulations, effective January 17, 2017, with compliance required by May 1, 2017, provide as follows:
See Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987-01, 90987, 2016 WL 7242991 (Dec. 16, 2016).
(a) The Appeals Council will review a case if—
. . .
(5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.
(b) The Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in [§§ 404.935; 416.1435] because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause;
(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or
(v) You received a hearing level decision on the record and the
20 C.F.R. §§ 404.970; 416.1470 (2017). As such, the new regulations add two requirements to a claimant's burden to have new evidence considered by the Appeals Council: (1) a requirement that a claimant demonstrate good cause for the failure to submit the evidence earlier ("good cause"); and (2) a requirement to show a reasonable probability of a different outcome ("reasonable probability standard"). A reasonable possibility the new evidence would have changed the outcome of the case has long been how the Fourth Circuit Court of Appeals defines "material." See Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (internal citation omitted); Wilkins v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). The amended regulations, however, re-define materiality as evidence that is "relevant, i.e., involves or is directly related to issues adjudicated by the ALJ," and adds the reasonable probability standard as an additional requirement. HALLEX I-3-3-6 (https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-6.html); see 20 C.F.R. §§ 404.970(a)(5); 416.1470(a)(5).Appeals Council reviewed your decision.
With the amended regulations, the Social Security Administration ("SSA") updated its internal Hearings, Appeals, and Litigation Law Manual ("HALLEX") to provide an explanation of how the Appeals Council would handle additional evidence. See HALLEX I-3-5-20 (available at https://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html).
Here, the plaintiff's request for review to the Appeals Council is dated June 30, 2017, after the new regulations became effective (Tr. 185). The plaintiff's request for review, as noted, included the submission of two medical source statements/opinions from Dr. Tran, the plaintiff's treating psychiatrist (Tr. 291-93). The Appeals Council denied the plaintiff's request for review, noting that the two opinions proffered by Dr. Tran did "not show a reasonable probability that it would change the outcome of the decision," and thus the Appeals Council "did not consider and exhibit this evidence" (Tr. 2). Consistent with this finding, the Appeals Council exhibited the plaintiff's request for review and her supporting brief, but did not incorporate the new evidence into the administrative record (Tr. 1-4).
The Commissioner argues that the plaintiff has not provided good cause for her failure to submit the evidence from Dr. Tran earlier, which is required by the amended regulations before consideration of new evidence is allowed by the Appeals Council (doc. 15 at 14-17). See 20 C.F.R. §§ 404.970(b); 416.1470(b). Although the plaintiff does not contend that she provided good cause for her delay in submitting Dr. Tran's medical source statements, the Appeals Council appears to have denied review based upon the opinions' failure to meet the reasonable probability standard, not upon good cause (see Tr. 2). As such, the Commissioner's post-hoc argument will not be further considered. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ."). The Commissioner's arguments that Dr. Tran's medical source statements are not new or material fail for the same reason. As such, in question is whether the Appeals Council erred in finding that the opinions by Dr. Tran did not meet the reasonable probability standard.
Although the plaintiff appears to rely on outdated regulations, she argues in essence that the new opinions, which bear "upon the debilitating nature of [her] depression," would have changed the outcome of the decision (see doc. 13 at 21-29). The undersigned disagrees.
The new evidence proffered by the plaintiff consists of two medical source statements/opinions by Dr. Tran, the plaintiff's treating psychiatrist. The first medical source statement by Dr. Tran, dated June 30, 2017, is comprised of a note on a prescription pad indicating that the plaintiff is permanently disabled and would benefit from food stamps ("Opinion 1") (doc. 13-1). The second medical source statement, dated July 13, 2017, is more detailed ("Opinion 2") (doc 13-2). As set out above, Opinion 2 indicates that the plaintiff would only occasionally be able to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, function independently, maintain attention/concentration, and deal with work stressors (id. at 2). In support of those limitations, it includes a statement that the plaintiff cannot function in a work setting due to emotional instability (id.). Dr. Tran also indicated that the plaintiff could only occasionally perform complex job instructions; detailed, but not complex job instructions; or simple instructions; maintain personal appearance; behave in a socially stable manner; relate predictably in a social situation; and demonstrate reliability (id. at 3). He noted that these limitations were exacerbated by chronic pain and emotional instability (id.). He checked the box indicating that the plaintiff's impairments would require her to exceed normal breaks in an 8-hour day, would interfere with her completion of an 8-hour workday, and would result in her missing more than four days of work per month (id. at 3-4). Dr. Tran also noted that two of the plaintiff's medicines, Seroquel and trazodone, could cause sedation (id. at 4).
In her brief, counsel for the plaintiff indicates that the new evidence includes "a medical source opinion and records;" however, the record indicates that the plaintiff only submitted the two medical source statements (compare doc. 13 at 21 with Tr. 2).
As noted, the new requirement of the amended regulations—the reasonable probability standard—is similar to the prior standard for determining "materiality" of an opinion. As such, Court of Appeals cases evaluating the prior regulations may be used as guidance. See Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011). If the "new evidence from a treating physician was not controverted by other evidence in the record," the ALJ's decision should be reversed and found unsupported by substantial evidence. Id. (citing Wilkins, 953 F.3d at 96). Further, if the evidence is not so one-sided as to allow the court to determine—based upon consideration of the entire record—whether substantial evidence supported the ALJ's denial of benefits, the appropriate course of action is to remand the case for additional fact-finding. Id. Thus, the undersigned must consider Dr. Tran's opinions as a part of the entire record in order to determine whether the ALJ's decision was supported by substantial evidence. See Spencer v. Comm'r of Soc. Sec. Admin., C/A No. 1:16-cv-1735-JMC-SVH, 2017 WL 1379605, at *10-13 (D.S.C. Jan. 31, 2017), Report and Recommendation adopted by 2017 WL 1364116 (D.S.C. Apr. 14, 2017).
The plaintiff, relying on Meyer, argues that the opinions meet the reasonable probability standard because the ALJ denied benefits based upon a mistaken perception that the plaintiff's "allegations concerning the disabling impact of her depression were not supported by medical evidence," because the evidence is the only opinion from the plaintiff's treating psychiatrist—noting that the opinion is consistent with the treating physician opinion of record from Dr. Baber, and because Opinion 2 contains additional mental limitations not consistent with the ALJ's RFC (doc. 13 at 21-29). The undersigned has carefully considered the plaintiff's argument in view of Meyer, that "analysis from the Appeals Council or remand to the ALJ for such analysis would be particularly helpful when the new evidence constitutes the only record evidence as to the opinion of the treating physician" and in light of the deference afforded to treating physician opinions. Meyer, 662 F.3d at 706; see 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). However, Meyer does not require remand in all cases where a treating physician's opinion was first submitted to the Appeals Council. Indeed, such a policy of blanket remand when the opinions are first submitted to the Appeals Council would create an incentive for claimants to avoid submitting treating physician opinions to the ALJ.
Additionally, here, unlike in Meyer, the ALJ did not reference the absence of treating physicians' opinions in evaluating the plaintiff's mental functioning or note that the lack of such evidence rendered the plaintiff's statements less consistent. Rather, the ALJ noted that the plaintiff's "at times" abnormal mental status exams were offset by generally "benign presentations noted elsewhere in the record and by evidence of effective treatment" (Tr. 20-21). The ALJ also noted that the plaintiff's allegations were not consistent with the medical evidence of record, including generally benign physical and mental status examinations nor were they consistent with the plaintiff's reported activities of daily living—"shopping, cooking, caring for her personal hygiene independently, performing household chores, and gardening" (Tr. 22).
Moreover, elements of Dr. Tran's opinions are refuted by evidence in the record before the ALJ—including Dr. Tran's own records. For example, Dr. Tran's indication that the plaintiff is emotionally unstable and would not be able to function in a work setting (doc. 13-2 at 2) is inconsistent with his benign mental status examinations of the plaintiff, including notations that the plaintiff was considering returning to work to keep busy (Tr. 389-94, 422-23, 425-31). Additionally, Dr. Tran's indication that the plaintiff would have "difficulty following job instructions" (doc. 13-2 at 3) is undermined by his indication that she could occasionally be able to understand, remember, and carry out complex job instructions; detailed, but not complex job instructions; and simple job instructions (id.) along with the plaintiff's plan of care, which indicates that her "abilities," defined as "assets/skills of the client that can be used in treatment," include the ability "to understand and follow instructions" (Tr. 377). Further, although Dr. Tran checked boxes indicating that the plaintiff's impairments would cause her to exceed the number of usual breaks during a work day, would interfere with her ability to complete an eight-hour workday, and would cause her to miss more than four days of work per month (doc. 13-2 at 3-4), his treatment records reflect an improvement in the plaintiff's mood lability, a euthymic mood, an indication that the plaintiff was considering returning "to work to keep herself busy," and a note that he would refer the plaintiff vocational rehab (Tr. 422-23, 425-29).
The analysis of the proposed limitations focuses on Opinion 2. Opinion 1 includes no functional limitations, and conclusorily states that the plaintiff is disabled and would benefit from food stamps (doc. 13-1 at 2). The regulations provide that statements than an individual is "disabled" is one of certain items which are reserved to the Commissioner; thus, they are not entitled to controlling weight or special significance. See 20 C.F.R. §§ 404.1527(d); 416.927(d). Further, as acknowledged by the plaintiff, Opinion 1 is duplicative of the opinion proffered by Dr. Baber and evaluated by the ALJ (doc. 13 at 23; see Tr. 21 (affording Dr. Baber's opinion little weight because it is an issue reserved to the Commissioner, it is inconsistent with the medical evidence, and it is inconsistent with the record evidence)). As such, the undersigned finds that Opinion 1 does not render the ALJ's decision unsupported by substantial evidence.
Treatment records for this visit are included in the record twice (see Tr. 430-31).
Further, although the ALJ did not have the opportunity to review Dr. Tran's opinions, he relied on substantial evidence in reaching his conclusion that would have been relevant to the analysis of the opinion under 20 C.F.R. §§ 404.1527(c); 416.927(c). The factors to be considered include (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. 20 C.F.R. §§ 404.1527(c); 416.927(c). The ALJ noted the plaintiff's examining and mental health treatment history with Dr. Tran and his associates, as well as Dr. Tran's observations (see Tr. 20-21). The ALJ indicated that treatment notes "at times" reflected a flat, tearful affect; suicidal ideation; depressed mood; poor judgment; poor insight; hopelessness; and paranoid, but that those "clinical presentations were offset by generally benign presentations noted elsewhere in the record" and by notations that the plaintiff's plan of care was effectively treatment of her mental health conditions (id.). The ALJ further noted that during the plaintiff's most recent visit with Dr. Tran, on December 14, 2016, the plaintiff's mental status examination was "essentially normal, revealing cooperative behavior, intact thought processes, proper orientation, intact memory, attention, and concentration, and fair judgment and insight" (Tr. 21).
Again, while the ALJ did not have the benefit of reviewing Dr. Tran's opinions before issuing a decision, his finding that the evidence was inconsistent with a finding of disability remains supported with the addition of the opinion. For instance, the ALJ found a finding of disability inconsistent with the plaintiff's reported activities of daily living, which included shopping, cooking, caring for her personal hygiene independently, performing household chores, and gardening (Tr. 22). The ALJ examined opinion evidence and provided some weight to the state agency psychological consultants' opinions that the plaintiff was capable of unskilled work with limitations to "simple, but not detailed instructions; maintain concentration and attention for at least two hours; perform best in situations that do not require ongoing interaction with the public; and, be aware of normal hazards and take appropriate precautions (Tr. 21). Nevertheless, the ALJ only afforded them some weight because he found that new evidence of record supported additional limitations, including a limitation to work that involves few, if any, workplace changes (id.). Thus, the ALJ cited substantial evidence of record that is inconsistent with Dr. Tran's opinions. In light of the foregoing, the undersigned recommends that the court find the Appeals Council did not err in declining to remand the case to the ALJ for the consideration of Dr. Tran's opinions.
Step Two
The plaintiff asserts that the ALJ erred in finding that her borderline personality disorder was non-severe (doc. 13 at 33-35). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c); 416.920(c). "Basic work activities" are "the abilities and aptitudes necessary to do most jobs," examples of which include "physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." Id. §§ 404.1522; 416.922. In short, the "inquiry is a de minimis screening device to dispose of groundless claims." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). An ALJ must consider all of a claimant's medically determinable impairments, even those that are not severe, in the RFC assessment. 20 C.F.R. § 404.1545(a)(2); 416.945(a)(2). As argued by the Commissioner (doc. 15), if an ALJ commits error at step two, it can be rendered harmless if "the ALJ considers all impairments, whether severe or not, at later steps." Robinson v. Colvin, C.A. No. 4:13-cv-00823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)); see also Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (holding that there is "no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps"). The plaintiff bears the burden of showing that an error is harmful. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
At step two of the sequential evaluation process, the ALJ found that the plaintiff had the following severe impairments: affective disorder and anxiety disorder (Tr. 17). The ALJ found the plaintiff's borderline personality disorder non-severe because it "does not have greater than a minimal limitation on the [plaintiff's] physical or mental ability to perform basic work activities" (Tr. 18). The ALJ reasoned that the record evidence indicated that the plaintiff "had essentially normal mental status examinations and control with medication and psychotherapy" (Tr. 18 (citing Tr. 327-29, 355, 368-72, 373-421, 422-23, 425-26)).
Despite finding the plaintiff's borderline personality disorder non-severe, the ALJ continued consideration of the plaintiff's borderline personality disorder in the subsequent steps of the sequential evaluation process. Indeed, the ALJ included in his listing analysis Listing 12.08, which applies to "personality and impulse-control disorders" (Tr. 18-19). Additionally, the ALJ's RFC included a substantial number of non-exertional mental limitations in order to account for the plaintiff's impairments (see Tr. 19). As such, even if the ALJ should have found the plaintiff's borderline personality as a severe impairment, any error would be harmless because the ALJ nevertheless proceeded to the next steps of the sequential evaluation process and, as noted, continued consideration of the plaintiff's borderline personality disorder. See Washington v. Astrue, 698 F. Supp. 2d 562, 579-80 (D.S.C. 2010) (internal citations omitted) (explaining that even if an ALJ erroneously determines that impairment is not severe, reversal is not warranted as long as the ALJ considered the impairment in subsequent steps). Accordingly, any error with respect to the ALJ's categorization of the plaintiff's borderline personality disorder as non-severe is harmless.
Medical Source Opinions
The plaintiff also argues that the ALJ failed to appropriately account for Dr. Baber's opinions (doc. 13 at 29-33). The regulations require that all medical opinions in a case be considered. 20 C.F. R. §§ 404.1527(b); 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. §§ 404.1527(c)(2); 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. §§ 404.1527(c)(1)-(5); 416.927(c)(1)-(5); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). However, "[t]he Fourth Circuit has not mandated that the ALJ expressly discuss each factor, and another court in this district has held that 'an express discussion of each factor is not required as long as the ALJ demonstrates that he applied the . . . factors and provides good reasons for his decision.'" Shuler v. Berryhill, C/A No. 0:16-CV-529-DCN, 2017 WL 3634595, at *3 (D.S.C. Aug. 23, 2017) (alteration in original) (quoting Hendrix v. Astrue, C.A. No. 1:09-01283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010)).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. §§ 404.1527; 416.927. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. §§ 404.1520c; 416.920c; see also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017).
On January 23, 2014, and January 20, 2015, Dr. Baber, a treating psychiatrist, opined that the plaintiff was disabled (Tr. 350-51, 360). The ALJ considered Dr. Baber's January 23, 2014, opinion (Tr. 21) and assigned it "little weight, as it is inconsistent with the medical evidence of record and inconsistent with the record as a whole[,] . . . [and] his opinion is an issue reserved for the Commissioner" (id.).
The opinion can also be found at Tr. 405-06.
The undersigned notes that Dr. Baber appears to have provided this opinion on two occasions, as noted above. Nevertheless, to the extent that the ALJ erred in failing to specifically identify and evaluate Dr. Baber's prescription pad opinion, the undersigned finds such error harmless as the opinion, duplicative of the opinion evaluated by the ALJ, would not have affected the ALJ's analysis.
The plaintiff argues that the ALJ erred by not evaluating Dr. Baber's opinions using the factors set forth in the regulations, including Dr. Baber's status as a treating provider, the treatment relationship, the supportability of the opinion, that the opinion was based on objective medical testing, Dr. Baber's specialty in psychiatry, and the consistency of Dr. Baber's opinion with the record evidence (doc. 13 at 31). Due to this failure, the plaintiff contends that the ALJ's decision lacks explanation of its rejection of Dr. Baber's opinion, requiring remand (id. at 32). The undersigned disagrees. While opinions by treating physicians are typically afforded deference, the law provides no "special significance to the source of an opinion on issues reserved to the Commissioner." 20 C.F.R. §§ 404.1527(d); 416.927(d) (noting that "[o]pinions that you are disabled" are among those reserved to the Commissioner"); see e.g., Curler v. Comm'r of Soc. Sec., 561 F. App'x 464, 471 (6th Cir. 2014) (citing Turner v. Comm'r of Soc. Sec., 381 F. App'x 488, 492-93 (6th Cir. 2010)). As such, and as noted specifically by the ALJ, Dr. Baber's opinion was not entitled to controlling weight or special significance under the regulations. See 20 C.F.R. §§ 404.1527(d)(3); 416.927(d)(3).
Further, in assigning the opinion little weight, the ALJ noted that Dr. Baber's opinion was inconsistent with an earlier opinion that the plaintiff was not disabled, as well as with the medical and record evidence (Tr. 21). The record sustains the ALJ's assessment that Dr. Baber's treatment records were inconsistent with his opinion (Tr. 21). Indeed, Dr. Baber's records reflect that, with treatment compliance, the plaintiff's depression was only "at times" treatment resistant, the plaintiff reported that she was "doing pretty well," had no signs or symptoms of psychosis, repeatedly refused to attend counseling, and began attending church (See Tr. 337-58, 368-69, 395-418). These notes by Dr. Baber, coupled with long term conservative mental health treatment undermine his conclusory opinion that the plaintiff was disabled (id.). This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up "specious inconsistencies," Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992). As such, based upon the foregoing, the ALJ's evaluation of Dr. Baber's opinion is based upon substantial evidence and without legal error.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing,
IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED
s/ Kevin F. McDonald
United States Magistrate Judge April 22, 2019
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).