Opinion
Civil Action No. 6:17-2067-RBH-KFM
12-20-2018
Marcus S. Mosley, 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 Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act (doc. 1 at 1-2).
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on August 9, 2014, alleging that he became unable to work on August 9, 2012. The application was denied initially and on reconsideration by the Social Security Administration. On January 27, 2015, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Karl S. Weldon, an impartial vocational expert, appeared on January 11, 2017, considered the case de novo and, on February 13, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 19-35). 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 June 20, 2017 (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 last met the insured status requirements of the Social Security Act on June 30, 2016.
(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of August 9, 2012, through his date last insured of June 30, 2016 (20 C.F.R. § 404.1571 et seq).
(3) Through the date last insured, the claimant had the following severe impairments: affective disorder with occasional psychotic features, anxiety disorder, posttraumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), and borderline intellectual functioning (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c) except he is limited to only occasionally climbing ladders, ropes, and scaffolds. He can occasionally be exposed to hazards associated with unprotected dangerous machinery and unprotected heights. The claimant can concentrate, persist, and maintain pace to understand, remember, and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills, and occasional work place changes. He is able to perform jobs where the work is largely isolated from the general public, dealing with things rather than people; perform jobs where the work duties can be completed independently from coworkers (physical isolation is
not required); and respond appropriately to reasonable and customary supervision. The claimant should not be openly exposed to controlled substances, such as work in a law enforcement evidence facility, forensic lab, pharmaceutical manufacturing plant, medical facility, or pharmacy. He can maintain concentration, persistence, and pace for 95 percent of the workday, but would be off task an average of five percent of the workday beyond normal work breaks (e.g. an average of six minutes off task per two-hour work segment, or 24 minutes off task in an eight-hour workday).
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on October 15 1970, and was 45 years old, which is defined as a younger individual age 18-49, on the date last insured (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 C.F.R. § 404.1568).
(10) Through the date last insured, 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 and 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from August 9, 2012, the alleged onset date, through June 30, 2016, the date last insured (20 C.F.R. § 404.1520(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.
Both the Commissioner and the plaintiff state in their briefs that the ALJ denied both the plaintiff's DIB claim and his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act (doc. 16 at 1; doc. 17 at 2). As set out above, however, the ALJ's decision concerns only the plaintiff's application for DIB (see Tr. 19-35). Further, in his complaint, the plaintiff seeks review of the Commissioner's denial of his claim for DIB, and the plaintiff makes no mention of any claim for SSI (doc. 1 at 1-2).
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), 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).
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. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(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
The plaintiff was 41 years old on his alleged disability onset date (August 9, 2012) and 45 years old on his date last insured (June 30, 2016). He graduated from high school and attended some college, including earning an associate's degree as a medical assistant (Tr. 244-56, 274, 682). The plaintiff has past relevant work as a patient transport worker (Tr. 33).
On May 13, 2014, the plaintiff was seen at Families First Family Medicine by Joshua Paul, M.D., for an annual physical and followup of rhinitis and his attention deficit disorder ("ADD"). The plaintiff reported a lack of focus and attention since childhood, but also that he did not repeat grades in school and attended college, albeit with tutoring. He reported that he was a stay at home dad who worked as an IT technician. On examination, the plaintiff was pleasant. Dr. Paul noted that the plaintiff decided to try medication for his chronic problems with ADD. Dr. Paul noted that the plaintiff denied any sleep disturbances, weight loss or gain, change in appetite, depressed mood, feelings of being overwhelmed, thoughts of hurting himself or hallucinations. Dr. Paul prescribed Strattera 10mg twice a day and asked the plaintiff to return in one month for a recheck. The plaintiff also saw Anne Tuggle, M.D., for allergy treatment (Tr. 550-54).
On June 17, 2014, the plaintiff returned to Dr. Paul for a recheck of his ADD. Dr. Paul noted that the plaintiff complained of high stress, sleep disturbances, depression, feeling overwhelmed, and episodes of sadness and crying. He denied thoughts of hurting himself or hallucinations. Dr. Paul also noted that the plaintiff's symptoms were consistent with generalized anxiety disorder ("GAD") and depression. The plaintiff reported that the Straterra had been working well, but he had run out. His wife reported that he had mood swings. Dr. Paul noted that he decompensated at night. Dr. Paul's assessment was ADD, without mention of hyperactivity, as well as GAD. The plaintiff was anxious, but otherwise presented with no positive psychological findings. Dr. Paul diagnosed anxiety and increased the plaintiff's dosage of Strattera (Tr. 460-61).
On July 16, 2014, Dr. Paul noted that the plaintiff's presentation suggested depression with anxiety, rather than ADD. Insurance would not cover Strattera, however, so Dr. Paul prescribed Paxil. On examination, the plaintiff was pleasant and made good eye contact (Tr. 458-59).
At a followup on August 15, 2014, the plaintiff reported that Paxil was not working. Dr. Paul noted that the plaintiff's wife "describes other [symptoms], such as mood lability and sudden crying spells more [consistent with] a mood [disorder]." Dr. Paul opined that the plaintiff probably had depression and a possible underlying mental diagnosis, questionably bipolar disorder. He continued to complain of sleep disturbances, a depressed mood and sad or crying spells. He denied feelings of being overwhelmed, thoughts of hurting himself, or hallucinations. Dr. Paul's assessment at that time was mood disorder NOS, GAD, and depression with anxiety. Dr. Paul noted that he was going to stop the Paxil and try the plaintiff on Effexor XR 50 mg, refer him to psychotherapy, and would recheck him in four weeks (Tr. 456-57). The plaintiff returned to Dr. Paul after five days, stating that the Effexor was making his anxiety worse, and he wanted the medication changed. Dr. Paul noted that he would stop the Effexor and begin him on a trial of Abilify. He also stated that he "would like to get psychotherapy involved as soon as possible to tease out some of these mixed features. Close monitoring" (Tr. 454-55).
On September 10, 2014, the plaintiff was seen by a psychiatrist, Shane Sherbondy, M.D., for a psychiatric evaluation. Dr. Sherbondy noted that the plaintiff's chief complaint was that he was unable to stay focused and that the Strattera he had originally been prescribed by Dr. Paul had made him feel "like a normal person"; however, insurance would not cover it. Dr. Sherbondy also noted that the plaintiff had a history of physical and sexual abuse along with self-mutilation at the age of 18. On examination, he was alert and oriented to person, place, time, and situation. He demonstrated normal speech. He was cooperative with a good mood, though his affect was blunted. He had normal, logical, and goal-directed thought processes, his thought content was normal, and his memory was intact. He could perform serial threes, abstraction was normal, and his fund of knowledge was fair. Dr. Sherbondy diagnosed the plaintiff with ADHD, depression NOS, anxiety NOS, ruling out austim spectrum disorder. Dr. Sherbondy noted that the plaintiff's Global Assessment of Functioning ("GAF") was 49, but noted that the plaintiff's highest GAF score in the past year was 59-65. Dr. Sherbondy prescribed Strattera (Tr. 478-80).
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 any serious impairment 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 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").
A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. DSM-IV, 32-34. A GAF score between 61 and 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well. Id.
The plaintiff returned to Families First Family Medicine on September 15, 2014, and was seen by Dr. Tuggle, who stated:
He had ADD when he was in high school and was in special ed classes. He is seeing Dr. Sherbondy at this time. [The plaintiff] complains of high stress in the family. He has been unemployed since 2012. He has been let go several times because he has not been able to adjust to different rules. Complains of sleep disturbances. Unable to fall asleep at night, usually only gets 4 hours of sleep per night. Complains of low energy level. Complains of depressed mood. Complains of feeling overwhelmed. Complains of sad[ness] or cry[ing] easily. Complains of hallucinations, both visual and auditory, when is unable to stay focused(Tr. 450). Dr. Tuggle noted that since the plaintiff was under the care of a psychiatrist, she would have the psychiatrist manage his ADD and psychological issues (Tr. 450-43).
On October 13, 2014, the plaintiff returned to Dr. Sherbondy reporting improvement with his depression and requesting that his medication be increased to the maximum. He also reported better sleep with no suicidal or homicidal ideations or hallucinations (Tr. 477).
On October 28, 2014, the plaintiff was seen by Dr. Tuggle with complaints of high stress in his family, feelings of being overwhelmed, and a decreased appetite. Dr. Tuggle increased the Strattera to 80 mg and suggested that, in addition to seeing a psychiatrist, he should try seeing a psychologist or counselor too (Tr. 448).
On October 28, 2014, Dr. Sherbondy completed a medical source statement for the South Carolina Vocational Rehabilitation Department. Dr. Sherbondy opined that the plaintiff's compliance with his treatment had been good, but because he had only been in treatment for a short time, Dr. Sherbondy was unable to determine the outcome. Dr. Sherbondy further opined that the plaintiff's grooming and hygiene were appropriate, he was orientated to time, his affect was blunted and mood was irritable, his thought process was normal with no perceptual distortions, and he had average cognitive ability and good concentration and memory. Dr. Sherbondy noted that, considering his mental impairments, the plaintiff would be able to adequately complete basic activities of daily living and complete simple, routine tasks and complex tasks. His ability to relate to others was poor. Dr. Sherbondy also opined that the plaintiff would be capable of managing his own funds (Tr. 438-39).
On November 11, 2014, the plaintiff returned to Dr. Sherbondy, who noted that since increasing the Strattera to 80mg, the plaintiff was calmer overall and sleeping better. He stated he was getting along much better with his wife. Dr. Sherbondy did not adjust the plaintiff's medication (Tr. 476).
On November 12, 2014, the plaintiff was seen by Dr. Tuggle, who noted that the plaintiff continued to complain of inability to fall asleep at night in addition to a depressed mood and low energy level. Dr. Tuggle also reported that the plaintiff complained that he had intermittent feelings of being overwhelmed with aggressive mood swings that have been better controlled with Seroquel that was prescribed by Dr. Sherbondy. Dr. Tuggle also stated that the plaintiff "is unable to work in close proximity to others. He needs help with his activities of daily living. He is unable to meet competitive standards with normal work stress." Dr. Tuggle increased his Strattera (Tr. 489).
On November 14, 2014, state agency psychologist, Michael Neboschick, Ph.D., reviewed the medical evidence. Dr. Neboschick found that the plaintiff could handle simple tasks and persist for two hour periods, missing maybe a day or two due to his symptoms, but generally being able to complete a normal workweek (Tr. 104). Dr. Neboschick further opined that the plaintiff could work in an uncrowded setting without ongoing interaction with the general public or close coordination with others to carry out tasks and could avoid hazards and adhere to normal standards of safety and hygiene (Tr. 103-06).
On November 24, 2014, Dr. Tuggle completed a medical source statement in which she opined that the plaintiff would not be able to work in the proximity with others without being unduly distracted, accept constructive criticism from supervisors, or maintain concentration to compete normal work tasks. Dr. Tuggle further opined that the plaintiff would be unable to meet competitive standards when it came to maintaining persistence and pace throughout a normal work day, cope with normal work stresses, perform activities of daily living, and work with the public. Dr. Tuggle also noted that the plaintiff would have constant episodes of decompensation and would be absent for an entire month due to his psychological symptoms. Dr. Tuggle opined that due to his moderate to severe symptoms, the plaintiff could not function independently without accommodations (Tr. 500-01).
On this same date, Dr. Sherbondy completed the same form provided by the plaintiff's attorney. Dr. Sherbondy opined that the plaintiff would be seriously limited in his ability to work in proximity to others, work with the public, accept constructive criticism from supervisors, and maintain concentration to complete normal work tasks. Dr. Sherbondy further opined that the plaintiff would be unable to meet competitive standards when it came to maintaining persistence and pace throughout a normal work day or cope with normal work stress and that he would limited in performing activities of daily living. Dr. Sherbondy indicated that the plaintiff would have occasional episodes of decompensation, would be absent from work three days per month due to his psychological symptoms, and would have moderate symptoms that would affect his ability to demonstrate punctuality and reliability in a work setting (Tr. 497-98).
On December 31, 2014, the plaintiff reported to Dr. Tuggle that he was off his medication for two weeks. Dr. Tuggle increased the plaintiff's Strattera dosage. On examination, Dr. Tuggle noted no positive findings. The plaintiff exhibited normal eye contact and a pleasant mood (Tr. 530-33).
On January 8, 2015, Michael Hammond, Ph.D., reviewed the medical evidence. Dr. Hammond made similar findings as Dr. Neboschick had in November 2014. He opined that the plaintiff could "maintain attention and concentration for two hours at a time as requires to perform simple tasks, sufficiently to complete an eight hour day and 40 hour week." Socially, the plaintiff could work in an environment with no public contact and casual and infrequent contact with coworkers and supervisors. For adaptive functioning, Dr. Hammond indicated that the plaintiff could adapt to predictable work environments, make simple work-related decisions, avoid hazards, and travel to and from work independently (Tr. 119-23).
On January 30, 2015, the plaintiff presented to Piedmont Mental Health for treatment and was seen by William Taylor, M.D. Dr. Taylor noted in his initial meeting:
P[atient] reports he is "trying to find a place where I can get help." P[atient] says he has anxiety and depression. P[atient] says his wife feels he may have PTSD and p[atient] explains that he has occas[ional] rage or anger and says he does not remember and his wife tells him what happened. P[atient] says he believes that stress or things from the tv may cause a "flashback" such as seeing people arguing or fighting on the tv in old talk shows. P[atient] denies any past psych in[patient] treatment. P[atient] says his first psychiatric contact was with Dr. Sherbondy about 4 months. P[atient] says he never sought help when younger. P[atient] says he attended Furman, G[reenville] Tech, and Brown Mackie and has a Associates Degree in Medical Assistant. P[atient] says he is not working now "because of my condition, because I don't think I am fit to be in a work environment" and says he has felt the urge to "act out" and get "angry, confused, and frustrated and cannot follow my daily work routine or finish my assignments [sic]—guess I get confused and frustrated." P[atient] says he did not like the gossip and "pressure from the work employees and not able to communicate with my boss or people around me." P[atient] says he does "great" on current meds and that Seroquel is very helpful for him and sleeps well with this. . . . P[atient] says he has one 2 y[ear old] son and is a stay-at-home father and says he really enjoys caring for his son and never gets angry with him and would never harm him. P[atient] says he has a [history] cutting at 16 y[ears old] about 3-4 times per month until 19 y[ears old]. P[atient] says he was able to stop cutting by
controlling his thoughts. P[atient] says he attributes his cutting to coming from a "very abusive and violent family" and says that he was also sexually molested by his cousins starting at age 5 until age 12. P[atient] says he never told his parents and the only person he has expressed this to is his wife. P[atient] has never been in therapy. P[atient] [says] his thoughts "are very tiring, wear me out" and says he would like "peace, not to have to think about stuff." P[atient] says he has flashbacks through the day with no triggers but p[atient] denies any nightmares now, which stopped when he was younger. P[atient] says he sees shadows and flashes of light occas[ionally] but denies frank aud[itory] halluc[inations]. P[atient] says he does have persecutory ideas and sometimes believes his wife is cheating on him . . . but says he does not remember saying these things to her and says that she tells him that he is verbally abusive toward her with periodic anger. . . . [He] says he used crack and alcohol while on the street that helped to "decrease the noise in my head." P[atient] describes this "like a billion televisions in your head and not able to focus on what you need to see and hear - like flashback after flashback." . . . P[atient] says he also went through substance abuse program at Miracle Hill. . . . [H]e is not using any alcohol or drugs now and never used substances prior to the time on the street . . . he has no cravings or desire for drugs or alcohol now. P[atient] says when he is not with his sons he spends time cleaning or playing video games, which he says helps his "mind to go blank, pretend to be something else." P[atient] says playing video games releases stress. . . . [H]e has moments of feeling that "everybody is against me and will snap and get angry" and says he believes that someone might try to interfere with his marriage, sometimes feels that the [sic] whole world is against him. . . . [He] denies any specific delusions or persecutory ideas about any specific individuals or entities. . . . P[atient] firmly denies any [suicidal ideation or homicidal ideation].(Tr. 513). Dr. Taylor noted during the examination that the plaintiff would initially avoid eye contact but had improved by the end of the examination, his speech was a bit reticent but normal, his thought process was logical and goal directed, he did have vague delusions with intermittent paranoia, and his affect was constricted with mild dysphoria, which improved over time. He was alert and oriented to time, place, person and circumstance. Dr. Taylor assessed a GAF score of 51. Dr. Taylor diagnosed posttraumatic stress disorder, mood disorder, psychotic disorder, "consider" schizoaffective disorder," and ruled out bipolar disorder, noting that he doubted the plaintiff's ADD diagnosis. Dr. Taylor added Neurontin to the plaintiff's medications and recommended therapy (Tr. 513-15).
On February 24, 2015, the plaintiff returned to see Dr. Taylor and reported that he stopped taking Seroquel and Strattera. He also reported that he continued to have occasional flashbacks and depression that waxed and waned with no specific trigger. Dr. Taylor noted that the plaintiff reported feeling "exhausted, like giving up" but firmly denied any suicidal ideation. He did feel he would do better with daytime Seroquel to help calm him down during the day. Dr. Taylor noted that the plaintiff continued to have vague paranoia. Upon examination, Dr. Taylor noted that the plaintiff had vague persecutory delusions, occasional visual hallucinations and flashbacks, and he had a blunting affect. Dr. Taylor assessed a GAF score of 52. Dr. Taylor noted that the "plan is to increase Seroquel and also provide daytime Seroquel with p[atient] advised of possible sedation and not to drive after taking Seroquel and he accepts and feels he needs this during the day. Plan also to increase Neurontin" (Tr. 516-17).
On February 27, 2015, the plaintiff was seen by Aarti Patel, MA, LPC, a therapist at Piedmont Mental Health. The plaintiff stated that things were better since Dr. Taylor changed his medications. He reported that his nightmares had ceased, and he was not becoming as angry or frustrated as he had before. Mr. Patel stated:
Progress of the client reports he worked on intervention of writing letters to his mother and ripping it and it has helped decrease the anger in regards to her. Client states he also has not been thinking about the past as much. [Client] reports using the safe word with his wife when her voice gets louder has been helping him not get so angry(Tr. 524). On this same date, the plaintiff saw Dr. Tuggle. She noted no positive findings in psychological examinations, finding that the plaintiff was pleasant and displayed normal eye contact when his mental status was assessed. She adjusted his ADD medication (Tr. 601).
In a followup examination on March 19, 2015, Dr. Taylor noted that the plaintiff reported that the initiation of the daytime Seroquel had been very helpful and calmed him so that he can sit still; however, he continued to have occasional flashbacks about his abusive childhood. Otherwise, he felt much more hopeful about life and had more energy. The plaintiff also reported that his wife was very happy with his progress on the medication and said that he was no longer losing his temper with her. A psychiatric examination was unremarkable. Dr. Taylor assessed a GAF score of 55. Dr. Taylor noted that while the plaintiff was much improved with the current medication regime, he was not "optimal" and planned to increase the dosage of the daytime Seroquel (Tr. 518-19).
On April 2, 2015, the plaintiff saw Mr. Patel again and noted that he had been spending time with his in-laws and attending church. Mr. Patel reported that the plaintiff's only interactions with people were when he attended church. Mr. Patel also noted that the plaintiff had an argument with his wife stating that "once he gets angry, he doesn't remember what happens after that." Mr. Patel reported that the plaintiff felt once his medications are adjusted he believed he would "do better." He returned to Mr. Patel on April 9, 2015, and reported that he had a "pretty good week." The plaintiff reported that he had continuing problems with concentrating and staying still. He stated that he needed to have his ADHD medications refilled by his primary care physician (Tr. 526-27).
On April 14, 2015, the plaintiff presented to Dr. Taylor after an argument with his wife. He reported that the increase in the daytime Seroquel helped some, but he felt that he needed a higher dose to help with his agitation. He reported that he was not having any more racing thoughts and that he continued to sleep well at night. Dr. Taylor agreed to increase the dose of the daytime Seroquel on an as needed basis. He instructed the plaintiff to take half of the 200mg tablet if he found it to be too sedating (Tr. 520-21).
On May 18, 2015, the plaintiff returned to Mr. Patel showing some progression in his therapy. He felt less stressed since he and his wife were able to use their tax refund to pay off some bills and alleviate some financial stress. He also noted that he had been spending time outside and felt motivated to do more things with his wife and son. He reported that he continued to have a difficult time with focusing and had memory loss. Mr. Patel noted that the plaintiff believed the medication was helping, but he also felt it wore off quickly. Otherwise, he felt his stress had improved (Tr. 528). During a followup on June 15, 2015, the plaintiff reported that "the past couple of weeks have been rough" (Tr. 529).
At appointments on May 27 and July 2, 2015, the plaintiff saw Dr. Tuggle. She noted no positive findings in psychological examinations, finding that the plaintiff was pleasant and displayed normal eye contact when his mental status was assessed. She adjusted his ADD medication (Tr. 597, 599).
On July 7, 2015, Dr. Taylor noted that the plaintiff had been out of his medication for two days, and he reported the medication was helpful in controlling his symptoms. The plaintiff reported that he had discussed with his wife that "when he is on his medication [sic] he is in control and things are clearer." Dr. Taylor also noted that the plaintiff continued to be a stay-at-home father and that he and his wife agreed that due to the pressures of a normal work environment, he would be better suited to stay home. He said that having a daily routine of caring for his son helped him stay on track. He played video games as a hobby. The plaintiff reported occasional vague paranoia about people being against him in general but had no specific persecutory delusions. The plaintiff reported that he made his home environment calm and avoided any difficult people and would spend time alone to regroup. Dr. Taylor opined that the plaintiff was "stable and likely at his best level of functioning and does well by also limiting stressors" (Tr. 522-23).
On September 2, 2015, the plaintiff was seen by Dr. Tuggle and reported that he did not feel that his medicine regime at that time was working throughout the day. Dr. Tuggle noted that the plaintiff was nervous and anxious. She increased his medications (Tr. 588-89).
On September 29, 2015, the plaintiff returned to Dr. Taylor reporting stability and that he continued to have vague paranoia of people. He also reported that he saw "baseline flashes of light" but denied auditory hallucinations. Dr. Taylor stated, "Pt says he feels stable as long as he can manage stress and avoid most contact with others." On examination, aside from his reports of occasional vague paranoia and "flashes of light," the plaintiff presented with no positive findings. He was cooperative and calm; his eye contact and speech were normal; his thought process was logical and goal directed; his mood was euthymic; his affect was appropriate; and his judgment and insight were good. Dr. Taylor reported that the plaintiff was as stable as possible on his current medication regime. Dr. Taylor recommended followup in three months (Tr. 609-10).
On November 2, 2015. Dr. Tuggle noted that the plaintiff presented with worsening anxiety, and she prescribed Buspar 15mg. She found that he exhibited "normal mood and affect" and normal judgment and thought content in a psychiatric examination (Tr. 579-81).
During a followup appointment on December 15, 2015, Dr. Taylor recounted that the plaintiff reported stability with his medication and described periodic vague paranoia, seeing shadows, and not being able to tolerate others. Dr. Taylor noted that, due to the plaintiff's inability to tolerate the general public and his vague paranoia, he "limits any time in stores and avoids crowds and people." The plaintiff was cooperative and calm; his eye contact and speech were normal; his thought process was logical and goal directed; his mood was euthymic; his affect was appropriate; and his judgment and insight were good. The plaintiff reported that he had been taking an extra Neurontin during the day to help him with his anxiety and stress as he got anxious later in the day. Dr. Taylor increased Neurontin and recommended followup in three months (Tr. 607-08).
On January 5, 2016, the plaintiff was seen by Dr. Tuggle, who noted that he was nervous and anxious. She noted that he was oriented to person, place, and time, and his mood and affect were normal. Dr. Tuggle refilled his Buspar and changed his ADD medication to Vyvanse 30mg (Tr. 577-78). On February 5, 2016, he returned stating that the Vyvanse was not working. He reported fidgeting as well as trouble falling and staying asleep. The plaintiff reported that he was receiving relief from his panic attacks on Buspar. Dr. Tuggle noted that the plaintiff was positive for depression, suicidal ideation, and memory loss. Dr. Tuggle prescribed Intuniv for ADD (Tr. 573-75).
On March 8, 2016, the plaintiff was "doing well." Although he reported vague paranoia and mild insomnia, he described "awesome" symptom relief from his medications. On examination, except for the plaintiff's reports of "chronic baseline paranoia," Dr. Taylor again noted no positive findings. The plaintiff was cooperative and calm; his eye contact and speech were normal; his thought process was logical and goal directed; his mood was euthymic; his affect was appropriate; and his judgment and insight were good. Dr. Taylor recommended followup in three months (Tr. 605-06). On this same date, Dr. Tuggle prescribed medication for anxiety, ADD, and reports of insominia. Although the plaintiff had a "blunt" affect, he exhibited normal speech, behavior, and thought contact; he reported no hallucinations; his cognition and memory were normal; and he was attentive. Dr. Tuggle noted unremarkable psychiatric findings on examination (Tr. 570-72).
On May 6, 2016, Dr. Tuggle prescribed medication for anxiety, ADD, and reports of insominia. She noted unremarkable psychiatric findings on examination (Tr. 568-69).
On May 26, 2016, Dr. Tuggle adjusted the plaintiff's ADD medication. Dr. Tuggle noted no positive findings in his psychological examination and found that the plaintiff was pleasant and displayed normal eye contact when his mental status was assessed (Tr. 583).
On May 27, 2016, Dr. Taylor stated:
Pt says he is maintaining stability but notes some difficulties with his in-laws and says this is a "hostile environment" and notes much difficulty in this regard. Pt says he copes better if he maintains distance from them . . . . Pt says some family members were calling him accusing him of falsehoods and says this caused some PTSD sx to recur and was so angry that he says he stopped taking his psych meds for 2 days. . . . Pt says he had recurrent voices the 2 days he was off medication. Pt says he has chronic paranoia and believes that his family and people are against him and struggles to cope with this and remembers his years of being homeless and does not want to return to this level of decompensation noting that he had no access to psychiatric care when he was homeless.(Tr. 603). He also reported that his wife and the medication helped him cope and improved his symptoms. Aside from his reports about paranoia and the auditory hallucinations without medication, Dr. Taylor noted a largely unremarkable psychological examination. The plaintiff wore sunglasses, but Dr. Taylor still found his appearance within normal limits. He was cooperative and calm; his speech was normal; his thought process was logical and goal directed; his mood was euthymic; his affect was appropriate; and his judgment and insight were good. Dr. Taylor noted that the plaintiff was as stable as possible and had some chronic symptoms that were less intense with his medication. Dr. Taylor recommended a three month followup (Tr. 603-04).
On July 5, 2016, Dr. Tuggle prescribed medication for anxiety, ADD, and reports of insomnia. She noted unremarkable psychiatric findings on examination and that the plaintiff exhibited "good grooming, full facial expressions, normal speech pattern and content, normal thought patterns, normal perception, good insight, normal reasoning." He reported some side effects, including decreased libido and erectile dysfunction, but no drowsiness or sedation (Tr. 655-69).
On August 18, 2016, the plaintiff reported that his medication was effective, and he appropriately handled a communication from his brother that caused him stress. His only concern was reduced sex drive as a side effect of his medication. Aside from the plaintiff's reports about chronic paranoia, Dr. Taylor again noted a largely unremarkable psychological examination. He wore sunglasses, but Dr. Taylor still found his appearance within normal limits. He was cooperative and calm; his speech were normal; his thought process was logical and goal directed; his mood was euthymic; his affect was appropriate; and his judgment and insight were good. Dr. Taylor recommended a three month followup (Tr. 671).
On September 6, 2016, the plaintiff saw Dr. Tuggle. He displayed normal speech, behavior, judgment, thought contact, cognition, and memory. He reported some side effects, including decreased libido and erectile dysfunction, but no drowsiness or sedation (Tr. 661-64).
During an October 21, 2016, therapy session, Mr. Patel noted that the plaintiff had been off of his medications for a week. The plaintiff reported that when he did not take his medicine, he was unable to complete tasks and generally could not function well. He reported that he would be refilling his medications once he left that therapy session. He reported continued family conflict, which added to his anxiety and depression (Tr. 673-78).
On November 10, 2016, the plaintiff was seen by Dr. Taylor for followup. Dr. Taylor stated:
Pt says that he has been taking an extra Seroquel 300mg tab due to some increased sx, described as "noise in my head, voices, feeling edgy" when he goes to bed. Pt says the voices are derogatory. Pt says he does not usually hear voices during the day. Ps says he therefore ran out of the Seroquel for a period of time but has since obtained a refill. Pt says he completely depends on his medicines to maintain stability and is at a place in his life that he wants to remain stable. Pt says his wife calls him through the day to be certain that he has taken his medications. . . . Pt says also the Neurontin is helpful to keep him calm and depends on this. Pt says he has intermittent thoughts of anger and retaliation but says that playing video games with some violence in them actually helps to alleviate any of his own thoughts of anger.(Tr. 669). The plaintiff also described additional stress due to his upcoming Social Security disability hearing and psychological assessment. At this visit's examination, Dr. Taylor noted that the plaintiff was "somewhat guarded," "agitated," "irritable," and "angry," but "calm later." His thought process was logical and goal directed, and his judgment and insight were good. Dr. Taylor noted that he would slightly increase the plaintiff's Seroquel but was hesitant to do so given the possible risks and side effects. The plaintiff indicated that he would accept the risks as he felt he needed the higher dose to be able to function. Dr. Taylor also increased the plaintiff's Neurontin to an additional dose at bedtime for anxiety. Dr. Taylor noted that he would follow up with the plaintiff in one month (Tr. 669-70).
On December 6, 2016, the plaintiff underwent a clinical evaluation performed by Robin Moody, Ph.D. In review of the plaintiff's background, Dr. Moody stated:
Marcus was reared by a single mother and he has two younger brothers. Marcus never knew his father. As a child he claims he was "beaten" nearly every day by his mom. She would hit him in the head. He also witnessed his mother being physically abused by various boyfriends according to his wife. When his mother was being abused Marcus would go and hide in the closet. From the ages of 5-17 years old he was sexually abused by several female cousins. . . . Marcus finds that his past abuse has greatly affected his life in many ways. He has intrusive thoughts of the abuse daily. He feels angry and irritable. He stated "I want to hurt someone but I try not to . . . so I keep to myself." He avoids crowds and social interaction and prefers to stay at home. Even at home he sometimes isolates himself in his bedroom away from his wife and child. He has nightmares and dreams about the abuse "every night." It takes him about an hour to fall asleep each night and then he only sleeps for 2-3 hours before awakening. He feels restless. He has some emotional triggers he could identify; more often his wife does or says something that reminds him of his past abuse. He has a low frustration tolerance. He attends church but is always anxious to leave after the service to avoid interacting with people.
The anxiety symptoms Marcus experiences have caused him to be terminated or to quit jobs in the past. He has been terminated from at least two positions for arguing with
coworkers or supervisors. He has never held a job for more than 6 months by his report. He claimed he also struggled with following instructions and keeping up with the pace of his work. He was distracted by anxiety and struggle to trust his coworkers. He also reported experiencing flashbacks of his abuse and having difficulty concentrating as a result. . . .(Tr. 680).
When questioned about his mood Marcus stated, "With the medication . . . it is supposed to make me feel calm but I don't feel calm. It keeps the aggression and anger at bay." . . . He feels restless. He is fidgety. He claims he feels tired "all the time." He isolates himself in his room occasionally. He reports suicidal and homicidal thoughts but denied any current intent or plan. He had two prior suicide attempts as a teen but nothing since that time. He has no assault charges of which he is aware. He reports auditory hallucinations in which he is called names and told he is "bad." He stated that the voices often tell him to kill himself. Because of the voices he turned to drugs and alcohol in the past.
Upon review of his mental status, Dr. Moody stated:
He was fidgety and shifted in his seat periodically. His speech was clear and normal in tone and volume. Sometimes he would pause before answering and would apologize for not being able to recall information quickly. His affect was nervous and his mood was somewhat irritable; especially during testing. His thought processes were logical but may have been racing at times. He reported auditory hallucinations but none were witnessed during the evaluation. His attitude was cooperative. His memory and concentration were fair, at very best. His judgment and insight appear adequate. Marcus was administered the MMSE- 2 exam and produced a score of 18/30. Marcus could identify three out of three items for immediate recall but no items for delayed recall. He knew the year, season, month, day of the week, state and floor. He did not know the date, county, city or building name. He could not produce any correct responses for serial 7's. He could identify two objects, repeat a phrase, identify three geometric shapes read and follow a command, write a sentence and draw conjoining pentagons.(Tr. 683). Dr. Moody also noted that the plaintiff demonstrated adequate effort during testing but did become irritable when he had to complete the written test. The plaintiff was administered the Wechsler Adult Intelligence Scale, 4th Edition and received a Full Scale IQ of 67. He was also given the Wide Range Achievement Test, 4th Edition and scored on a ninth grade reading level, a sixth grade level for sentence comprehension, a seventh grade level for spelling, and a third grade level for math computation. He was deficient on reading composite (Tr. 684).
Dr. Moody concluded:
Marcus and his wife appeared to be reliable sources of information. Marcus has a history of physical and sexual abuse as a child which is cause for current anxiety symptoms. His symptoms appear most consistent with a diagnosis of Posttraumatic Stress Disorder characterized by past trauma, intrusive thoughts, nightmares/dreams, flashbacks, emotional triggers, anger/irritability and difficulty falling asleep and staying asleep. He also reports some symptoms of depression in which he feels fatigued, isolates himself and suicidal and sometimes homicidal ideations. However, his homicidal ideations appear more associated to his anxiety disorder. He also reports experiencing auditory command hallucinations in which voices call him names and tell him to harm himself. Therefore, a diagnosis of Unspecified Depressive Disorder is suggested for consideration.(Tr. 685).
Marcus produced a FSIQ=67 with a verbal score of 72 and nonverbal score of 73. His ability to reason with and without words was comparable and within the borderline range. His ability to maintain concentration and attention fell within the borderline range as well and was only better than 3% of individuals his same age. His ability to process routine visual information without making errors was also poor and within the borderline range. His General Ability Index falls within the lower borderline range (GAI=70). Marcus' achievement scores are somewhat higher than his abilities in some areas. His word reading ability fell within the below average range and was the highest of all achievement scores. . . .
Marcus's cognitive abilities seem to fall within the borderline range. This seems consistent with his reported difficulty in school. He claimed he repeated two grades and really struggled in math class. His math score feel at the 3rd grade level. . . . Diagnoses of Borderline Intellectual Functioning and Specific Learning Disorder with Impairment in Math are suggested given these scores.
Dr. Moody referenced the plaintiff's representation that he "has never held a job longer than 6 months" as support for finding a "significant social impairment." Dr. Moody opined that the plaintiff had "significant social impairment due to anxiety" and that his concentration, pace, and persistence were "fair, at very best." Dr. Moody stated that the plaintiff's concentration, pace, and persistence were impacted by his anxiety symptoms, and while he might be able to carry out simple instructions, he might not be able to do so on a consistent basis due to his emotional symptoms. Dr. Moody did not think that the plaintiff would be able to manage his funds if he was awarded benefits due to his lack of experience with managing a bank account and the fact that his math abilities were on a third grade level. Dr. Moody also opined that the plaintiff did not appear to be exaggerating his symptoms (Tr. 685-86).
As noted by the Commissioner, the plaintiff's work history report shows that he worked at some jobs for longer than six months (Tr. 294).
Dr. Moody also completed a psychological assessment form with regard to the plaintiff's ability to do work-related tasks. Socially, Dr. Moody checked that the plaintiff was "unable to meet competitive standards" when working near others or dealing with the public. Dr. Moody opined that the plaintiff would be unable to work in proximity with others without being distracted; he would be seriously limited, but not precluded, in accepting constructive criticism from supervisors; he would be unable to maintain concentration to complete normal work tasks; he would be unable to maintain persistence and pace throughout a normal workday; he would be unable to cope with normal work stresses; he would be limited but satisfactory in his performance of activities of daily living; and he would be unable to work with the public. Dr. Moody further opined that the plaintiff would have frequent episodes of decompensation, would be absent from work 15-20 days per month, and had marked severe limitations in his ability to demonstrate punctuality and reliability in a work setting (Tr. 687-88).
Dr. Moody also completed a medical source statement. Dr. Moody noted that the plaintiff was moderately limited (defined as limited, "but . . . . still able to function satisfactorily") in handling simple instructions and decisions and responding appropriately to usual work situations and changes in a routine work setting, but markedly limited in terms of handling complex instructions and decisions and social interaction (Tr. 689-91).
In a function report completed in December 2014 and January 2015, the plaintiff stated that he lived with his wife and young son. He was a stay-at-home father who cared for his son while his wife was at work, including feeding him and changing his diapers. Except for sometimes needing reminders from his wife, he reported no issues with caring for himself. The plaintiff's wife cooked, but he dusted, vacuumed, and took out the trash. He drove a car, although not often or for long distances, and he used public transportation. His wife handled the finances, but he reported no issues counting change or using money orders. His hobbies were drawing, watching television, and reading. He visited with family a few times a week and went to church once a week (Tr. 322-23, 333-35).
The plaintiff also submitted statements from third party lay witnesses. His mother-in-law wrote a letter reporting that he was a different person every time she met him, and she was worried about her daughter. She described an incident where the plaintiff yelled at her at a car dealership. A friend, Lois Blake, wrote that she gave food to the plaintiff's family, and she reported that the plaintiff had unpredictable moods, but he was "friendly, kind, thoughtful, and talkative" when in a good mood. Ms. Blake described being late bringing some food over and he texted her to "forget about bringing it," but he would contact her if they wanted the food. Another friend, Andrea Lewis, wrote that the plaintiff had difficulty socially at church, but he was "very reliable in church attendance and participation within our music program" (Tr. 399, 415-18).
During the administrative hearing held on January 11, 2017, the vocational expert testified that a hypothetical person of younger age with the plaintiff's same education, work experience, and skill set and with a residual functional capacity ("RFC") identical to that assessed by the ALJ could not perform the plaintiff's past relevant work. However, the vocational expert testified that there were other jobs available as an order picker, hand packager, and auto detailer. The ALJ then asked the vocational expert to assume the hypothetical individual could perform only light exertional work instead of medium exertional work. The vocational expert testified that the jobs of inspector, cleaner, and marker/pricer would be available. The ALJ then asked the vocational expert to assume the hypothetical individual would be off task 25% of the day, and the vocational expert testified that no jobs would be available (Tr. 88-92).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to conduct a function-by-function analysis in the residual functional capacity ("RFC") assessment as required by circuit precedent; (2) assigning improper weight to the medical opinions of Drs. Tuggle and Taylor; (3) assigning little weight to the medical source opinion of consultative examiner Dr. Moody; (4) failing to acknowledge and assess the opinion of treating physician Dr. Taylor; and (5) failing to properly consider the side effects of his medications (doc. 16 at 24-39).
The plaintiff's brief is 39 pages long. In the future, the plaintiff's counsel should seek leave of the court prior to filing a memorandum in excess of 35 pages. See Local Civil Rule 7.05(B) (D.S.C.).
RFC Assessment
The plaintiff first argues that the ALJ failed to conduct a function-by-function analysis as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) and Monroe v. Colvin, 826 F.3d 176 (4 th Cir. 2016) (doc. 16 at 24-28). The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC 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 in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment 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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he 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." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
In Mascio v. Colvin, relied upon by the plaintiff, the claimant objected to the ALJ's failure to conduct a function-by-function analysis of the claimant, as well as the use of a legally insufficient hypothesis to the vocational expert. 780 F.3d at 635-38. The court in Mascio found that, depending upon the circumstances of each case, remand may be appropriate where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review. Id. at 636 (citing Chichocki v. Astrue, 729 F.3d 172, 177 (2nd Cir. 2013)). However, the Fourth Circuit has not adopted a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis. Id. See also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016) ("We have not adopted a rule of per se reversal for errors in expressing the RFC before analyzing the claimant's limitation function by function.") (citing Mascio, 780 F.3d at 636)).
The plaintiff specifically argues that the ALJ failed to provide any explanation for the limitation in the RFC assessment finding that the plaintiff can maintain concentration, persistence, and pace for 95% of the workday, but would be off task an average of six minutes per two-hour work segment (doc. 16 at 26; see Tr. 26). At step three of the sequential evaluation process, the ALJ found that the plaintiff had "moderate" limitations in concentrating, persisting, or maintaining pace (Tr. 24). The ALJ noted the plaintiff's alleged "difficulty concentrating and focusing," but cited to evidence showing that the plaintiff cared for his young son while his wife worked, completed an associate's degree, engaged in hobbies that involved attention and concentration (watching television, playing video games, and watching movies), and followed instructions during psychological testing (Tr. 24). The ALJ found that this evidence "suggest[ed] that [the plaintiff] is able to concentrate and persist on tasks until completion" (Tr. 23-24).
In the RFC assessment, the ALJ further discussed evidence relevant to the plaintiff's ability to stay on task (Tr. 28-30). The ALJ first referred to the plaintiff's activities of daily living, drawing the reasonable inference that the plaintiff "engaged in a rather normal level of daily activity and interaction" (Tr. 28). The ALJ next discussed the plaintiff's medical treatment history, explaining that the plaintiff reported improvement in his symptoms with medication and typically presented without any significant findings in mental status examinations (Tr. 28-30). Lastly, the ALJ considered medical opinions, giving less weight to opinions that suggested that the plaintiff could not maintain persistence and pace throughout a normal workday and more weight to opinions that the plaintiff could complete a workday despite his impairments (Tr. 30-33).
Given this discussion and analysis, the court can meaningfully review the ALJ's finding that the plaintiff would be able to maintain concentration, persistence, and pace for 95% of the workday (Tr. 26). The ALJ gave the plaintiff some benefit of the doubt with respect to his alleged inability to stay on task, but found that the evidence did not support finding him pervasively limited in this area (Tr. 26-33). As argued by the Commissioner (doc. 17 at 17), in making an explicit finding about the plaintiff's ability to stay on task throughout the workday, the ALJ complied with Mascio and Monroe.
The plaintiff further argues that the ALJ failed to explain the limitations placed on him with regard to interacting with the public, coworkers, and supervisors (doc. 16 at 26). In this regard, the ALJ limited the plaintiff as follows:
He is able to perform jobs where the worker is largely isolated from the general public, dealing with things rather than people; perform jobs where the work duties can be completed independently from coworkers (physical isolation is not required); and respond appropriately to reasonable and customary supervision . . . .(Tr. 26). At step three of the sequential evaluation process, the ALJ found that the plaintiff had "moderate" limitations in interacting with others (Tr. 23). The ALJ noted that the plaintiff and his wife testified that he had difficulty interacting with others and had anger control problems and further noted that the plaintiff testified that he was unable to work due to problems with getting along with others (Tr. 23). However, the ALJ cited to evidence showing that the plaintiff drove a car, used public transportation, shopped in stores, went to the movies, went to church weekly, attended family outings monthly, spent time with family members daily, went out alone for short distances, and went outside daily (Tr. 23). The ALJ further noted that mental status examinations showed that the plaintiff was cooperative and calm (Tr. 23). Further, in the RFC assessment, found that the plaintiff engaged "in a rather normal level of daily activity and interaction," and his activities of daily living suggested that he could engage in some "social interactions [that] replicate those necessary for obtaining and maintaining employment" (Tr. 28). The ALJ also discussed the plaintiff's essentially normal mental status examinations and that the plaintiff's affective disorder with occasional psychotic features, anxiety disorder, PTSD, and ADHD were well controlled with medications (Tr. 28-33). The ALJ also evaluated the medical opinions, giving more weight to opinions finding that the plaintiff could engage in limited social interaction with the public, co-workers, and supervisors (Tr. 30-33). The undersigned finds that the ALJ's analysis of this limitation allows meaningful review by the court.
The plaintiff further argues (doc. 16 at 26) that the ALJ failed to provide an explanation for the limitation in the RFC assessment providing that the plaintiff "should not be openly exposed to controlled substances, such as work in a law enforcement evidence facility, forensic lab, pharmaceutical manufacturing plant, medical facility, or pharmacy" (Tr. 26). However, as argued by the Commissioner, the ALJ specifically noted that the plaintiff and his wife reported that he had a history of abusing drugs (Tr. 27, 29; see Tr. 513). As argued by the Commissioner, given this context, it is evident that the ALJ gave the plaintiff the benefit of the doubt in terms of this reported history and accordingly included an RFC restriction that would not require the plaintiff to work near controlled substances (Tr. 26). Further, even if the ALJ should have provided more explanation, the error was harmless, and remand on this basis is unnecessary as the plaintiff has failed to show evidence supporting a more restrictive RFC limitation related to exposure to controlled substances than the one provided by the ALJ. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."); Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding). Thus, any additional discussion by the ALJ of this restriction would not result in a different outcome.
Here, the undersigned finds that meaningful review of the RFC assessment is possible as the ALJ addressed the evidence that formed the basis for the RFC finding and assessed specific limitations, both physical and mental, that restrict the plaintiff's work performance based upon that evidence (Tr. 26-33).
Medical Opinions
The plaintiff argues that the ALJ erred in failing to properly evaluate and give proper weight to the opinions of treating physician Dr. Tuggle, treating psychiatrist Dr. Sherbondy, and examining psychologist Dr. Moody, and in "failing to acknowledge and assess" the opinion of treating physician Dr. Taylor (doc. 16 at 28-38). The regulations require that all medical opinions in a case be considered. 20 C.F.R. § 404.1527(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). 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). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. § 404.1527. 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. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
Drs. Tuggle and Sherbondy
On November 24, 2014, Dr. Tuggle completed a medical source statement in which she opined that the plaintiff would not be able to work in the proximity with others without being unduly distracted, accept constructive criticism from supervisors, maintain concentration to compete normal work tasks, meet competitive standards when it came to maintaining persistence and pace throughout a normal work day, cope with normal work stresses, perform activities of daily living, nor work with the public. Dr. Tuggle also noted that the plaintiff would have constant episodes of decompensation and would be absent for 30 days per month due to his psychological symptoms. Dr. Tuggle opined that, due to his moderate to severe symptoms, the plaintiff could not function independently without accommodations (Tr. 500-01).
The ALJ considered this opinion and found that it was entitled to "only some weight" as it was "too restrictive and inconsistent with the claimant's treatment history showing good control of symptoms with medication, essentially normal mental status examinations findings, reported extensive activities of daily living, and no evidence of any episodes of decompensation" (Tr. 31).
On October 28, 2014, treating psychiatrist Dr. Sherbondy opined that, considering his mental impairments, the plaintiff would be able to adequately complete basic activities of daily living and complete simple, routine tasks and complex tasks. His ability to relate to others was poor. Dr. Sherbondy also opined that the plaintiff would be capable of managing his own funds (Tr. 438-39). On November 24, 2014, Dr. Sherbondy opined that the plaintiff would be seriously limited in his ability to work in proximity to others, work with the public, accept constructive criticism from supervisors, and maintain concentration to complete normal work tasks. Dr. Sherbondy further opined that the plaintiff would be unable to meet competitive standards when it came to maintaining persistence and pace throughout a normal work day or cope with normal work stress and that he would be "limited but satisfactory" in performing activities of daily living. Dr. Sherbondy indicated that the plaintiff would have occasional episodes of decompensation, would be absent from work three days per month due to his psychological symptoms, and would have moderate symptoms that would "affect abilities" to demonstrate punctuality and reliability in a work setting "but individual can cope in a work place" (Tr. 497-98).
The ALJ found that the October opinion was entitled to partial weight as it was generally consistent with the plaintiff's treatment history showing good control of symptoms with medication, essentially normal mental status examination findings, and reported extensive activities of daily living, although the ALJ noted that Dr. Sherbondy's opinion was based on a treatment history of only three visits within a one month period (Tr. 31). The ALJ found that the November opinion was entitled to "only some weight" as it was inconsistent with Dr. Sherbondy's opinion just one month prior that the plaintiff was able to perform simple and complex tasks, and it was inconsistent with the plaintiff's treatment history showing good control of symptoms with medication, essentially normal mental status examination findings, reported extensive activities of daily living, and no evidence of any episodes of decompensation (Tr. 31).
The plaintiff argues that the ALJ failed to adequately explain why he failed to give the opinions of these treating providers controlling weight (doc. 16 at 32-33). The undersigned disagrees. As the ALJ noted, Dr. Sherbondy offered two opinions that were inconsistent with each other. Unlike the form Dr. Sherbondy completed in November 2014 stating that the plaintiff was seriously limited in handling work tasks (Tr. 497-98), Dr. Sherbondy opined in October 2014 that the plaintiff was "adequate" in terms of handling simple and complex tasks (Tr. 30-31; see Tr. 439). Similarly to Dr. Sherbondy's October opinion, the state agency expert psychologists opined that the plaintiff's mental health impairments would not prevent him from performing a range of unskilled work (Tr. 103-06; 119-23). The ALJ gave the opinions of the state agency psychologists "great weight" (Tr. 33).
The plaintiff contends that the ALJ's rejection of the November 2014 opinion was "overly simplistic" because it failed to account for Dr. Sherbondy's "ongoing treatment relationship" with the plaintiff "that provided the basis for his updated opinion" (doc. 16 at 33). However, the plaintiff appears to have visited Dr. Sherbondy only one time between the two opinions, and the plaintiff's symptoms were improved at that time with increased medication. Specifically, treatment notes reflect that on November 11, 2014, the plaintiff returned to Dr. Sherbondy, who noted that since increasing the Strattera to 80mg, the plaintiff was calmer overall and sleeping better, and he was getting along much better with his wife. Dr. Sherbondy did not adjust the plaintiff's medication (Tr. 476). The undersigned finds no error in the ALJ's rejection of the November 2014 opinion based upon its inconsistency with the prior opinion.
The plaintiff further argues that the ALJ's analysis was "perfunctory" and "spans only four lines," citing to the ALJ's statement that the opinions were "inconsistent with [the plaintiff's] treatment history showing good control of symptoms, essentially normal mental status examinations findings, reported extensive activities of daily living, and no evidence of any episodes of decompensation" (doc. 16 at 32-33). However, as argued by the Commissioner, the four lines cited by the plaintiff followed four pages in which the ALJ recounted the plaintiff's treatment history, mental status examinations, and extensive daily activities of daily living (Tr. 27-30).
The plaintiff also argues that the ALJ "offered no actual record evidence to support his conclusions" in rejecting the opinions (doc. 16 at 34, 37). The undersigned disagrees. With regard to the plaintiff's "treatment history showing good control of symptoms with medication" (Tr. 31-32), the ALJ cited to treatment notes wherein the plaintiff reported that his medications were helping with his symptoms (Tr. 28-29) (citing Tr. 448, 458, 460, 469-480, 489, 518-19, 520-23, 603, 605, 607, 610-11). With regard to the plaintiff's "extensive activities of daily living," the ALJ cited to the plaintiff's function report and testimony, which showed that he cared for his young son (including changing his diapers, feeding him, and dressing him), handled household chores, and engaged in some social activities (Tr. 28) (citing Tr. 284-93, 322-39, 463, 513-16, 522).
With regard to the plaintiff's "essentially normal mental status examinations findings" (Tr. 31-32), the ALJ cited to Dr. Tuggle's treatment notes when explaining that the plaintiff's "mental status examinations appear[ed] normal" (Tr. 28) (Tr. 444-68, 481-95, 530-67). Despite Dr. Tuggle's extreme opinion, his treatment notes described no positive findings in psychological examinations, but instead noted that the plaintiff exhibited normal eye contact and pleasant or euphoric mood (Tr. 448, 451, 455, 489, 531). Similarly, the ALJ cited to Dr. Sherbondy's treatment notes and explained that these notes showed the plaintiff's mental status examinations were "essentially normal" (Tr. 29) (citing Tr. 469-80). Unlike Dr. Sherbondy's extreme assessment on the November 2014 form, during treatment, Dr. Sherbondy found that the plaintiff was alert, exhibited normal speech, displayed a cooperative attitude, had a good mood, but blunted affect, and presented with normal, logical, and goal-directed thought process and content (Tr. 479-80). In terms of cognitive function, the plaintiff's memory was intact, he could perform serial 3s, his abstraction was normal, and his fund of knowledge was fair (Tr. 480).
The ALJ also addressed the plaintiff's treatment at Piedmont Mental Health Center, explaining that the plaintiff's "mental status examinations for the most part remained essentially normal" during this treatment (Tr. 29) (citing Tr. 510-29, 603-23, 667-78). The ALJ noted that the plaintiff described paranoia, flashbacks, and visual and auditory hallucination at times (Tr. 29). However, despite this, the plaintiff was cooperative and calm; his eye contact and speech were normal; his thought process was logical and goal directed; his mood was euthymic; his affect was appropriate; and his judgment and insight were good (Tr. 29; see Tr. 516, 518, 520, 607, 669, 671).
The ALJ reasonably found that these treatment records did not support the opinions of disabling limitations from Drs. Sherbondy, Tuggle, and Moody. Further, as noted above, the ALJ gave great weight to the state agency psychologists' opinions that the plaintiff could perform a range of unskilled work (Tr. 33; see Tr. 103-06, 119-23). Accordingly, the undersigned finds the plaintiff's allegation that the ALJ did not rely on record evidence in assessing the opinions of Drs. Sherbondy, Tuggle, and Moody is without merit.
The plaintiff further argues that the ALJ's analysis of Dr. Tuggle's opinion "overlooks critical aspects of [the plaintiff's] medical treatment history as well as lay witness testimony" (doc. 16 at 32). However, the plaintiff does not identify any of the "aspects" to which he refers. The ALJ based his findings on "consideration of the entire record" and explicitly discussed the plaintiff's treatment history and the statements provided by lay witnesses (Tr. 26, 28-30, 32-33). Thus, this argument lacks merit.
Lastly, the plaintiff argues that the ALJ should have given the opinions of Drs. Tuggle, Sherbondy, and Moody more weight because they were consistent with each other (doc. 16 at 33-34, 36). However, as the ALJ found, Dr. Sherbondy's October 2014 opinion was inconsistent with his November 2014 opinion (Tr. 30-31). Further, there are differences between the respective opinions of the three providers, as they set out different levels of limitation in the categories, and they widely diverge in terms of the plaintiff's anticipated absence rate from work, which is evident from the ALJ's summary of the evidence (Tr. 30-33; compare Tr. 497-98, 500-01, 687-88).
Based upon the foregoing, the undersigned finds that the ALJ's assessment of the medical opinions is based upon substantial evidence and without legal error.
Dr. Moody
On December 6, 2016, the plaintiff underwent a clinical evaluation by Dr. Moody, who opined that the plaintiff had "significant social impairment due to anxiety" and that his concentration, pace, and persistence were "fair, at very best." Dr. Moody stated that the plaintiff's concentration, pace, and persistence were impacted by his anxiety symptoms, and while he might be able to carry out simple instructions, he might not be able to do so on a consistent basis due to his emotional symptoms. Dr. Moody opined that the plaintiff was "unable to meet competitive standards" when working near others or dealing with the public and would be unable to work in proximity with others without being distracted. He would be seriously limited, but not precluded, in accepting constructive criticism from supervisors. He would be unable to maintain concentration to complete normal work tasks, would be unable to maintain persistence and pace throughout a normal workday, would be unable to cope with normal work stresses, would be limited but satisfactory in his performance of activities of daily living, and would be unable to work with the public. Dr. Moody further opined that the plaintiff would have frequent episodes of decompensation, would be absent from work 15-20 days per month, and had marked severe limitations in the ability to demonstrate punctuality and reliability in a work setting. Dr. Moody also noted that the plaintiff was moderately limited (defined as limited, "but . . . . still able to function satisfactorily") in handling simple instructions and decisions and responding appropriately to usual work situations and changes in a routine work setting, but markedly limited in terms of handling complex instructions and decisions and social interaction (Tr. 679-91).
The ALJ considered Dr. Moody's opinion but found that it was entitled to "little weight" as it "appear[ed] to be too restrictive and inconsistent with the claimant's treatment history showing good control of symptoms with medication, essentially normal mental status examinations findings, reported extensive activities of daily living, and no evidence of any episodes of decompensation" (Tr. 31-32).
As to the ALJ's analysis of Dr. Moody's opinion specifically, the plaintiff states, "As an initial matter, it is critical to note that Dr. Moody was the Commissioner's own consultative examiner" (doc. 16 at 35). However, Dr. Moody's report states that the plaintiff was referred by his attorney, "Lola Richey at Richey & Richey Law," rather than the Commissioner (Tr. 679). Further, even if the Commissioner had referred the plaintiff to Dr. Moody, no rule or regulation requires an ALJ to adopt the findings of a consultative examiner retained by the Commissioner. The plaintiff also claims that the ALJ failed to note that Dr. Moody was a specialist in psychology (doc. 16 at 36), but the ALJ identified Dr. Moody as a "Ph.D." who completed a "psychological evaluation" of the plaintiff (Tr. 30). Thus, it appears that the ALJ appropriately considered Dr. Moody as a psychological specialist. The plaintiff also argues that the ALJ "failed to note" that Dr. Moody's opinion was based on an examination and was supported by diagnostic testing (doc. 16 at 36). However, the ALJ specifically summarized Dr. Moody's findings, noting that Dr. Moody "completed [a] psychological evaluation" of the plaintiff on December 6, 2016, and that he administered IQ testing (Tr. 30). The remainder of the plaintiff's allegations of error as to Dr. Moody's opinion are identical to those raised with regard to the opinions of Drs. Tuggle and Sherbondy (doc. 16 at 35-37). For the reasons discussed above, the undersigned finds that the ALJ's assessment of Dr. Moody's opinion is based upon substantial evidence and without legal error.
Dr. Taylor
The plaintiff next argues that "[t]he ALJ's failure to weigh or even mention Dr. Taylor's treatment . . . or his opinion as to [the plaintiff's] mental health constitutes reversible error" (doc. 16 at 37-38). The plaintiff cites to one statement from Dr. Taylor, a treating physician at Piedmont Mental Health, that the ALJ allegedly should have "weighed" (id. at 37). Dr. Taylor noted, after his initial assessment of the plaintiff, that the plaintiff's history and presentation "seem[ed] to indicate a schizophreniform or schizophrenic illness that is likely long term and may have waxed and waned but also with bipolar [symptoms] and [significant] PTSD symptoms that complicate [history] and [diagnosis] and may lead also to dissociative episodes" (Tr. 515).
"Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). Dr. Taylor's statement cited by the plaintiff does not appear to be a medical opinion as contemplated by the regulations. Rather, as argued by the Commissioner, all this equivocal statement suggests is that the plaintiff's mental health disorder was difficult to diagnose. After making this statement on the plaintiff's initial assessment, Dr. Taylor formally diagnosed the plaintiff with PTSD, mood disorder, and psychotic disorder, listing the other disorders as ones that could be considered or ruled out (Tr. 514, 516, 518). The ALJ reasonably recounted Dr. Taylor's formal diagnoses from this visit, but did not restate every statement made by Dr. Taylor in the treatment note (Tr. 29). As the ALJ also set out, Drs. Sherbondy, Tuggle, and Moody offered different diagnoses than Dr. Taylor, including ADD, affective disorder with occasional psychotic features, anxiety, and borderline intellectual functioning (Tr. 28-30). Ultimately, the plaintiff's particular diagnosis was not a dispositive aspect of the ALJ's assessment here. "[A] diagnosis alone does not establish disability; rather, the plaintiff needed to prove a related functional loss stemming from the diagnosis." Lindsay v. Berryhill, C.A. No. 6:17-51-MBS-KFM, 2017 WL 6312734, at *8 (D.S.C. Nov. 2, 2017) (citing Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)), R&R adopted by 2017 WL 6270631 (D.S.C. Dec. 7, 2017). Consistent with this, the ALJ here generally recounted the various and differing diagnoses, but appropriately focused on whether the record evidence supported a finding of disabling functional limitations (Tr. 21-22, 26-33).
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 20 C.F.R. § 404.1520c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
The plaintiff further argues that "[t]he ALJ's failure to weigh or even mention Dr. Taylor's treatment of [the plaintiff] . . . constitutes reversible error" (doc. 16 at 38). However, the ALJ did, in fact, consider Dr. Taylor's treatment records in his discussion of the plaintiff's "mental health treatment at Piedmont Mental Health Center" (Tr. 23-24, 29) (citing Tr. 510-29, 603-23, 667-78). The ALJ noted that the plaintiff was diagnosed "with PTSD, mood disorder, and psychotic disorder" and that the plaintiff reported significant mental health symptoms (Tr. 29; see Tr. 513-15). However, as the ALJ explained, and as discussed above, treatment records from Piedmont Mental Health Center also contained the plaintiff's reports of improved symptoms with medication (Tr. 29). As noted by the Commissioner, Dr. Taylor's treatment became routine during the relevant period, consisting of followup once every three months with some attendant medication adjustments (Tr. 604-10, 669-71). Also, as the ALJ noted and as discussed above, treatment notes showed that the plaintiff's "mental status examinations for the most part remained essentially normal" (Tr. 29).
Based upon the foregoing, the ALJ's assessment of Dr. Taylor's treatment records is based upon substantial evidence and without legal error.
Side Effects of Medications
Lastly, the plaintiff argues that the ALJ erred in failing to properly consider the side effects of his medications on his ability to work (doc. 16 at 38-39). The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, "Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or severe that it prevent[ed] him from working a full eight-hour day." 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that "'[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'" Id. at 564 (quoting SSR 90-1p, 1990 WL 300812). The court further acknowledged:
***
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.
While objective evidence is not mandatory at the second step of the test, "[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers."Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. § 404.1529(c)(2) ("We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.").
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [he] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Because this application was adjudicated after the date SSR 16-3p became applicable, the court has analyzed the plaintiff's allegations under that ruling. Id. at *13 n.27. The court observes that SSR 16-3p discontinues use of the term "credibility," but "'the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record.'" Best v. Berryhill, C.A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (alteration in original) (quoting Sullivan v. Colvin, C.A. No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)). See also Keaton v. Colvin, C.A. No. 3:15-cv-588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term 'credibility' but does not alter the substantive analysis.").
(1) the individual's daily activities;20 C.F.R. § 404.1529(c).
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
In the RFC assessment, the ALJ noted that the plaintiff alleged that he experienced appetite changes, nausea, and dry mouth due to his medications (Tr. 27; see Tr. 53). Further, the ALJ noted that the plaintiff's wife suggested that the plaintiff's medication caused him to be drowsy (Tr. 27; see Tr. 79). In considering the plaintiff's subjective complaints, the ALJ found that the plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence of record (Tr. 28). The ALJ gave several reasons for his finding that the evidence of record did not support the degree of limitation asserted by the plaintiff. The ALJ found that the plaintiff's daily activities were not limited to the extent one would expect given his complaints of disabling symptoms and limitations (Tr. 28). Further, he noted that the plaintiff's mental status examinations remained essentially normal (Tr. 29). The ALJ also noted that the plaintiff's treatment history showed good control of symptoms with medication and that the plaintiff "denied any significant side effects" from his medications (Tr. 28) (citing Tr. 448, 458, 460).
Any error by the ALJ in failing to more fully discuss the plaintiff's alleged side effects is harmless. See Shinseki, 556 U.S. at 409 ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."); Mickles, 29 F.3d at 921 (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding). As argued by the Commissioner, it is evident from the ALJ's subsequent discussion that the plaintiff's activities of daily living, his medical treatment records, and the medical opinion evidence did not support any inference that the plaintiff experienced side effects that meaningfully affected his ability to work (Tr. 27-33). In April 2015, the plaintiff denied that he experienced daytime sedation as a side effect of his medications (Tr. 520-21). The plaintiff identified dry mouth as a side effect, but it was described as "mild" (Tr. 458, 546). The plaintiff reported nausea to Dr. Tuggle in February 2016 (Tr. 573), but this followed his report that he experienced nausea due to pain medication taken after a dental procedure (Tr. 625), not with reference to his psychiatric medication. The plaintiff otherwise denied experiencing nausea or fatigue in visits with Dr. Tuggle (Tr. 530, 596, 663). The plaintiff also complained of decreased libido and erectile dysfunction as a side effect of his medication, but this would have no impact on his ability to work (see Tr. 661-62). While the plaintiff argues that his physicians "echoed his testimony" regarding "side effects caused by [his] medication, including drowsiness" (doc. 16 at 38), no citations to the record are provided, and the undersigned has been unable to find any such indication by a treating or examining provider that the plaintiff experienced side effects from his medication that would affect his ability to work. Based upon the foregoing, there was no harmful error in the ALJ's analysis based on the plaintiff's alleged side effects.
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 December 20, 2018
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).