Opinion
C/A No. 9:19-3275-RMG-MHC
01-26-2021
James Nelson, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying his claim for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Plaintiff asserts there is not substantial evidence to support the ALJ's decision that he is not disabled or to deny his claim for benefits. He requests that the decision be reversed and remanded to the Commissioner for additional proceedings. The Commissioner disagrees, arguing that the decision to deny benefits is supported by substantial evidence, and Plaintiff was properly found not to be disabled.
This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Commissioner's decision be reversed and remanded.
I. FACTUAL BACKGROUND AND MEDICAL EVIDENCE
Plaintiff was twenty-three years old at the time he alleges he became disabled (September 12, 2016) and twenty-five years old at the time of the ALJ's decision. R.pp. 25, 185. He has a limited (tenth grade) education and no past relevant work. R.pp. 25, 41, 44, 215.
The medical evidence pertaining to his claim is as follows.
A. Emergency Department Records
On August 20, 2015, Plaintiff sought treatment at the emergency room of Palmetto Richland Hospital, stating he had a panic attack. Although his family suggested that he was having hallucinations, Plaintiff denied audio or visual hallucinations. The impression was anxiety attack, and Plaintiff was released. R.pp. 284-285. Later the same day, Plaintiff returned to to the emergency room complaining of insomnia. He was seen by a mental health counselor, and it was noted that he did not have any acute medical or psychiatric needs. The attending physician informed Plaintiff that he could use Benadryl or Melatonin for sleep, and Plaintiff was discharged to follow up with his regular mental health care provider. (Plaintiff reported taking an antidepressant but could not name the medication he took). R.pp. 287-289.
On August 21, 2015, Plaintiff went to the Providence Hospital emergency room with his mother. He reported anxiety, paranoid thoughts, and a belief that the devil was going to get him. He stated that his symptoms had gotten worse and he had not slept in four days. Plaintiff was held for a few hours for observation, given a dose of Ativan, and released. Plaintiff was diagnosed with a brief psychotic disorder and directed to seek follow up with Columbia Area Mental Health Center (CAMHC). R.pp. 295-298.
Plaintiff appears to have been enrolled in the Insights Young Adult Program, a part of the CAMHC, based on his being less than thirty-years old. See, e.g., R.p. 583 (noting in November 2015 that Plaintiff was twenty-two years old and would be a part of this clinic until he turned thirty, at which time he would be transferred to the adult clinic).
Plaintiff was brought to CAMHC on an emergency basis on August 20, 2015, because of chronic ongoing depression. R.p. 329. Psychiatrist Dr. John M. Billinsky conducted a psychiatric assessment and examination. Plaintiff reported that his depression got to the point where he needed help; he was unable to sleep or eat; and his mood was sad, anxious, and irritable. He also reported social isolation, low motivation, low initiative, anhedonia, low energy, poor concentration, poor attention span and that he felt hopeless, helpless, and overwhelmed. Dr. Billinsky noted that Plaintiff appeared unkempt and was suffering from delusions, depressed mood, severely impaired attention and concentration, flat and constricted affect, and a clouded sensorium. Plaintiff was diagnosed with major depressive disorder, severe, with psychotic features and his Global Assessment of Functioning (GAF) score was 45. R.pp. 317-318. On September 3, 2015, Plaintiff reported to Dr. Billinsky that his sleep was improved, but he had continued problems with concentration and anxiety. Although Plaintiff reported no problems with Latuda, Dr. Billinsky noted that the medication dose was likely insufficient. Plaintiff's GAF score at that time was 58. R.p. 392.
Clinicians use a GAF to rate the psychological, social, and occupational functioning of a patient." Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 597 n.1 (9th Cir. 1999). A GAF score of 41 to 50 indicates "serious symptoms" or "serious difficulty in social or occupational functioning." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed. 2000). A GAF of 51 to 60 indicates that only moderate symptoms are present. Perry v. Apfel, No. 99-4091, 2000 WL 1475852, at *4 (D. Kan. July 18, 2000); Matchie v. Apfel, 92 F.Supp.2d 1208, 1211 (D. Kan. 2000). It is also noted that the fifth edition of the Manual (DSM-V) has removed the GAF score scale from its current edition because it lacks conceptual clarity and is an unreliable psychometric measurement. See e.g., Finley v Colvin, No. 12-7908, 2013 WL 6384355, at *23 n. 9 (S.D. W.Va. Dec. 5, 2013).
From October 2015 to July 2018, Plaintiff was treated by psychiatrist Dr. William B. Walkup. Plaintiff saw Dr. Walkup approximately every two to three months, primarily for medication management. R.pp. 321, 322, 325-328, 373-376, 380, 383, 385-387, 390-391, 488, 506-507, 516, 524, 548, 557, 568, 595-596, 598-600, 602, 606-607, 611-612, 615-616, 623-626.
The records from CAMHC/Insights Young Adult Program contains numerous duplicates, and in some cases triplicates, of Plaintiff's medical records.
Plaintiff began seeing Marla Marin, a licensed professional counselor (LPC) and program coordinator, in September 2015. Treatment records continuing through May 2017 indicate that Ms. Marin provided individual, family, and emergency interventional counseling; made mental health assessments; and completed service plans, addendums to plans of care, and progress summaries for Plaintiff. R.pp. 331-333, 337, 344, 354, 366-367, 369-371, 404, 423, 455-456, 467-470, 505, 535-536, 555.
From November 2015 to July 2017, Plaintiff attended more than forty group therapy/art therapy sessions with counselor Mary C. How. R.pp. 338, 347-349, 355, 394, 397, 399-403, 405, 407, 410-411, 413-414, 416, 418-419, 421, 424, 424-426, 429, 431, 433-434, 437, 440-441, 445-446, 448, 452, 454, 457, 485-486, 490-491, 494, 496, 498, 500, 503-504, 508, 510-511, 513-514, 518, 520, 522-523, 525-526, 528, 531, 534, 541, 546, 553, 559-561, 567. Additionally, Plaintiff was seen by nurses at CAMHC for medical monitoring and medication checks. R.pp. 538-540, 565-566, 601.
C. State Agency Medical Consultants
On March 16, 2017, state agency psychologist Dr. Timothy Laskis opined that Plaintiff had moderate limitations in the ability to interact with others and in the ability to concentrate, persist, or maintain pace. R.p 88. He rated Plaintiff as moderately limited in his ability to interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, and work in coordination with or in proximity to others without being distracted by them. R.p. 90. Dr. Laskis opined that Plaintiff should be able to attend to and perform simple unskilled work for reasonable periods of time without special supervision; could attend work regularly, but might miss an occasional day because of his mental illness; could make work-related decisions, protect himself from work-related safety hazards and travel to and from work independently; and could accept supervision and interact appropriately with coworkers. He thought that Plaintiff might not be suited for work with the general public. R.pp. 87-91.
On August 10, 2017, state agency psychologist Dr. Celine Payne-Gair opined that Plaintiff had moderate limitations in the areas of understanding, remembering, and applying information; interacting with others; concentrating, persisting, and maintaining pace; and adapting or managing oneself. She thought that Plaintiff could understand and remember simple instructions; complete simple tasks, maintain attention and concentration for periods of at least two hours, and complete a normal workday and workweek without significant psychologically related interruptions; and perform at a consistent pace, relate appropriately to peers and supervisors, and adapt to routine change in the workplace. However, Dr. Payne-Gair found that Plaintiff would be moderately limited in the ability to accept instructions and respond appropriately to criticism from supervisors and in her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. R.pp. 98-103.
II. APPLICABLE LAW
A. Scope of Review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when "an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence." Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2007) (internal quotation marks omitted). Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence."Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that substantial evidence "means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion") (internal quotation marks omitted).
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Hays, 907 F.2d at 1456. Thus, in "assessing whether there is substantial evidence, the reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the agency." Walls, 296 F.3d at 290 (internal quotation marks omitted). "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Sequential Evaluation Process
To be considered "disabled" within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments that prevents him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. §§ 423(d), 1382c(a)(3)(H)(i); 20 C.F.R. § 416.905(a).
The Social Security Administration (SSA) has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). The five steps are: (1) whether the claimant is engaging in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment(s) meets or equals an impairment set forth in the Listings of Impairments, 20 C.F.R. Part 404, Subpt. P., App. 1; (4) whether the impairment(s) prevents the claimant from returning to his past relevant work; and, if so, (5) whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018).
It is the claimant's duty both to produce evidence and prove he is disabled during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). To satisfy this burden at step five, the Commissioner must prove, "by a preponderance of the evidence, that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's residual functional capacity, age, education, and work experience." Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016) (internal quotation marks omitted). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). The ALJ is to develop the record and where the ALJ "fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded." Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
III. ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for SSI on September 12, 2016, alleging disability beginning July 5, 2015, because of schizoaffective disorder, depression, anxiety, and attention deficit disorder. R.pp. 13, 185, 214. Plaintiff's claim was denied initially and upon reconsideration, and Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). A hearing, at which Plaintiff and a vocational expert (VE) testified, was held on October 17, 2018. R.pp. 31-81. The ALJ thereafter denied Plaintiff's claims in a decision issued December 11, 2018, finding that Plaintiff was not disabled from the date of his application through the date of the decision. R.pp. 13-26.
Although Plaintiff alleges disability beginning July 5, 2015, the applicable period does not begin on that date. A claimant can only receive SSI as of the month after the filing of his SSI application. See 20 C.F.R. §§ 416.202, 416.501, 416.335; see also R.pp. 13, 15, 26.
After a review of the evidence and testimony in the case, the ALJ determined at step two that Plaintiff suffers from the "severe" impairment of schizoaffective disorder, depressive type. R.p. 15. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the Listing of Impairments. R.pp. 16-18. The ALJ determined that, despite these severe impairments, Plaintiff nevertheless retained the residual functional capacity (RFC) to perform the full range of work at all exertional levels but had exertional limitations. Specifically, the ALJ found that Plaintiff was limited to simple, routine, and repetitive tasks and simple work-related decisions; can maintain concentration, persistence, and pace for periods of two hours; can perform activities within a schedule, maintain regular attendance, and complete a normal workday and workweek; can occasionally interact with the general public; can occasionally have close "team-type" interaction with coworkers; and can tolerate occasional changes in a routine work setting. R.p. 18.
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"If the claimant fails to demonstrate [he] has a disability that meets or medically equals a listed impairment at step three, the ALJ must assess the claimant's [RFC] before proceeding to step four, which is 'the most [the claimant] can still do despite [his] [physical and mental] limitations [that affect [his] ability to work].'" Lewis v. Berryhill, 858 F.3d 858, 861-62 (4th Cir. 2017) (quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)); see also 20 C.F.R. § 404.1520(e) ("If your impairment(s) does not meet or equal a listed impairment, we will assess and make a finding about your [RFC] .... We use our [RFC] assessment at the fourth step of the sequential evaluation process to determine if you can do your past relevant work [] and at the fifth step of the sequential evaluation process [] to determine if you can adjust to other work....).
At step four, the ALJ found that Plaintiff had no past relevant work. However, the ALJ obtained testimony from a VE and found, at step five, that Plaintiff could perform other jobs existing in significant numbers in the national economy (noting the representative occupations of assembler, hand packager, and production inspector) and was, therefore, not disabled. R.pp. 25-26.
Plaintiff appealed the ALJ's decision to the Appeals Council, which denied Plaintiff's request for review on September 23, 2019, thereby making the determination of the ALJ the final decision of the Commissioner. R.pp. 1-6. This action followed.
IV. DISCUSSION
Plaintiff contends that the ALJ failed to properly evaluate Plaintiff's RFC and the opinion of his treating psychiatrist. He also asserts that the ALJ failed to fully consider whether Plaintiff met or equaled the Listings of Impairments at § 12.03(C) [schizophrenia spectrum and other psychotic disorders] and § 12.04(C) [depressive, bipolar, and related disorders]. The undersigned agrees that the ALJ failed to properly evaluate the opinion of Plaintiff's treating psychiatrist.
A. Treating Physician/Opinion Evidence
Plaintiff asserts that the ALJ improperly discounted the opinion of his treating psychiatrist, Dr. Walkup. On August 7, 2018, Dr. Walkup completed a Medical Assessment of Ability to Do Work-Related Activities (Mental) questionnaire in which he checked boxes indicating that Plaintiff had only fair ability to relate to co-workers, interact with supervisors, and function independently and had poor-to-no ability to deal with the public, use judgment, deal with work stress, and maintain concentration/attention. Dr. Walkup noted that these limitations were supported by Plaintiff's auditory hallucinations, paranoid ideation, and poor concentration. As to making performance adjustments, Dr. Walkup thought that Plaintiff had fair ability to understand, remember, and carry out detailed, but not complex, job instructions and to understand, remember, and carry out simple job instructions and poor-to-no ability to understand, remember, and carry out complex job instructions. Dr. Walkup stated that these limitations were based on Plaintiff's difficulty with attention, concentration, and short-term memory. As to making personal-social adjustments, Dr. Walkup opined that Plaintiff had good ability to maintain personal appearance, fair ability to behave in an emotionally stable manner, and poor-to-no ability to relate predictably in social situations and to demonstrate reliability. Dr. Walkup based these limitations on Plaintiff's anxiety in social situations and his fear of others. It was noted that Plaintiff's mental limitations had been present at the level indicated for more than two years. However, Dr. Walkup thought that Plaintiff had the capability to manage benefits in Plaintiff's own best interest. R.pp. 636-638.
A treating physician's opinion is ordinarily entitled to great weight, see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996) (noting importance of treating physician opinion), is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. § 416.927. See SSR 96-2p, 1996 WL 374188. Under these regulations, a treating source's opinion on the nature and severity of an impairment is entitled to "controlling weight" where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Further, the ALJ is required to provide an explanation in the decision for what weight is given a treating source's opinion and, if rejected, why it was rejected. See 20 C.F.R. § 416.927(c). The Regulations provide that, if a treating source's opinion is not accorded controlling weight, the ALJ is required to consider "all of the following factors in deciding the weight we give to any medical opinion": (1) examining relationship ("[g]enerally, we give more weight to the opinion of a source who has examined you than the opinion of a source who has not examined you"); (2) treatment relationship, including length of treatment relationship, frequency of examination, and the nature and extent of the treatment relationship; (3) supportability ("[t]he more a medical source presents relevant evidence to support an opinion ... the more weight we will give that opinion"); (4) consistency; (5) specialization; and (6) other factors. Id.
For claims filed after March 27, 2017, the regulations have been amended, and several of the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the SSA "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." 20 C.F.R. § 416.920c (2017). As the claim in the present case was filed before March 27, 2017, Plaintiff's claim has been analyzed pursuant to the treating physician rule set out above. As such, references in this report and recommendation are to the prior version of the regulations, unless otherwise specified.
The ALJ's decision to give little weight to Dr. Walkup's August 2018 opinion is not supported by substantial evidence. The ALJ discounted Dr. Walkup's opinion, finding that it was grossly inconsistent with Dr. Walkup's treatment records showing mostly normal findings on psychiatric examinations and with other records indicating that Plaintiff usually reported a good, stable mood with no hallucinations or delusions when compliant with treatments. R.p. 24.
While the ALJ is correct that Dr. Walkup's treatment notes generally showed mostly normal findings, there are other entries that support Dr. Walkup's opinion. In December 2015, Dr. Walkup noted that despite compliance with medication, Plaintiff felt paranoid, believed others were plotting against him, experienced persecutory delusions, and heard derogatory voices. Plaintiff's Latuda dosage was increased. R.p. 321. In August 2016, Plaintiff stated he did not believe he had a mental illness, questioned his diagnosis, and asked to be undiagnosed. Dr. Walkup thought that Plaintiff had poor insight; diagnosed Plaintiff with schizoaffective disorder, depressive type; and prescribed Latuda and Wellbutrin. R.p. 325. On May 2, 2017, Plaintiff reported that Latuda interfered with his sleep and made him feel more depressed. Plaintiff's insight and judgment were noted to be fair. Dr. Walkup discontinued Plaintiff's Latuda prescription and prescribed Abilify and Cogentin. R.pp. 548-549. On June 12, 2018, examination indicated that Plaintiff had a constructed affect, depressed mood, fair judgment, and fair insight. R.p. 598.
The ALJ also may have given lesser weight to Dr. Walkup's opinion (and appears to have discounted Plaintiff's subjective complaints at least in part) based on his finding that "the records usually show treatment noncompliance when the claimant reports worsening symptoms." R.p. 23. The ALJ also appeared to find, pursuant to 20 C.F.R. § 416.930 (need to follow prescribed treatment) that Plaintiff did not have a good reason for not following prescribed treatment. R.p. 21. However, there is no indication that the ALJ considered the reasons why Plaintiff, at times, did not take his medications as directed. See Daniels v. Berryhill, No. CV 4:18-174-RMG, 2019 WL 2723694, at *5 (D.S.C. July 1, 2019) ("[W]here an ALJ relies on a claimant's non-compliance with prescription medications to support a denial of a disability claim, the ALJ must include an explanation or discussion of the reasons, supported by the record, for his determination that noncompliance indicates willful conduct."); see also Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009) (recognizing that a claimant's noncompliance with taking psychiatric medications can be the result of the mental impairment such that it is neither willful nor without a justifiable excuse).
In March 2017, a nurse noted Plaintiff's partial noncompliance with his medicine and his reports of increased anxiety/depression and racing thoughts at night that affected his mood swings and sleep. Plaintiff questioned whether Latuda was helping him. The nurse explained the medicine dosing to Plaintiff and offered techniques to help him remember to take his medicine. R.p. 539. In May 2017, Plaintiff reported that he had not picked up his medication because he could not afford it. It appears that Plaintiff did not understand he had applied for prescription assistance to obtain the medication for free. R.p. 551. In July 2017, Plaintiff reported difficulty falling asleep and a nurse thought that Plaintiff's sleep might be affected if he was taking his pill too late in the evening. R.p. 566. Additionally, medical records suggest that injectable medication was being considered to ensure medication compliance. See, e.g., R.pp. 535, 555. Thus, it is unclear that Plaintiff's medication noncompliance was willful such that it cannot be said that noncompliance was an appropriate reason to discount his treating physician's opinion and to find that he was not disabled.
Additionally, in discounting Dr. Walkup's opinion records based on other records, the ALJ does not appear to have fully considered the extent to which treatment records from the CAMCH counselors and nurses (who worked with Dr. Walkup) support his opinion. On April 28, 2016, Ms. Marin noted Plaintiff's cognitive dissonance and reports that Plaintiff was looking down and appeared depressed. R.p. 344. On August 2, 2016 (the same day Plaintiff reported no hallucinations to Dr. Walkup), Plaintiff reported to Ms. Marin that he was always doing things for God and his neighbors, which she thought indicated a chronic delusional issue. Ms. Marin noted that Plaintiff lacked insight as to taking responsibility for his home and relied on the grace of his family for nutrition (meals). She thought that his parents needed to stay in his life to help. R.p. 505.
On December 2, 2016, Plaintiff reported to Ms. Marin that he felt drained with no motivation, had toxic and negative thoughts, had faithless thoughts, and had missed his deadline to apply for SNAP benefits. Staff noted that Plaintiff continued to have some delusional ideations, intrusive ideations, and much religiosity. Plaintiff displayed questionably inappropriate responses possibly indicating he was responding to internal stimuli. R.p. 521. On February 1, 2017, Plaintiff questioned if his brain would ever be "fixed," and Ms. Marin opined that Plaintiff had a chronic condition that needed constant monitoring. She noted that Plaintiff got everything from his parents, did not have money, and yet denied needing money. R.p. 529.
On March 17, 2017, Plaintiff's mother reported to Ms. Marin that he was getting overwhelmed and was not able to control his symptoms of depression and irritability. R.p. 535. On March 20, 2017, Plaintiff reported taking medications before going to bed, experiencing depression some days and anxiety other days, and having continued anxiety that had not dissipated. Ms. Marin made suggestions concerning Plaintiff's medication schedule. R.p. 536. On May 25, 2017, Ms. Marin noted that Plaintiff appeared "to be at his baseline of grandiose thinking that is delusional as well." Although Plaintiff denied overt symptoms, he engaged in delusional ideations and although he denied hearing or seeing things, he admitted to using music to distract himself. Ms. Marin thought Plaintiff's progress was limited because of the severity of his illness. R.p. 555.
On November 9, 2017, Plaintiff stated to Nurse Dianne D. Sloss at CAMCH that he felt a little paranoid. He reported that he saw something out of the corner of his eye when watching television, but when he turned his head, nothing was there. Plaintiff said that this happened about three times a week, was not something new, and that he had not mentioned this to his physician. R.p. 601.
Additionally, the testimony of Plaintiff and his mother, as well as a function report, do not support the ALJ's conclusions. At the hearing, Plaintiff testified that he still heard voices, did not like going out in crowds or to the store, was very suspicious, was fearful of evil or wicked people at the store, and that going out made him anxious and panicky. R.pp. 46-47, 55-57. Plaintiff's mother stated that Plaintiff could not stay home alone for extended periods without supervision, was not able to be home without her at night because of his fear and anxiety, she he sent him to stay with Plaintiff's grandparents, and he was only able to stay at with his grandparents for a couple of weeks because he thought there were evil forces all around the neighborhood. She testified that Plaintiff had attention deficit disorder with problems in concentration, processing information, and expressing himself. R.pp. 60-71.
In a function report dated February 14, 2017, completed by Plaintiff and his mother, Plaintiff reported that he had a hard time keeping his mind on track, his medication made him sleep a lot, he only bathed on some days, his mom told him he needed to be better groomed, and his mother checked every day to make sure he took his medication the right way and reminded him of his doctor and therapy appointments. Plaintiff stated that he did not cook at that time because he left the stove on and "smoke everything once and accidentally forgot to turn a pot off a few times." Plaintiff reported that he stayed inside most of the time because "there is too much evil around [his] neighborhood." Although Plaintiff said he loved playing basketball, he had to take a break until he could handle things again. He also stated that he got into arguments and his mom told him he was being paranoid. Plaintiff wrote that he had difficulty with talking, memory, completing tasks, concentrating, understanding, following instructions, and getting along with others. Finally, Plaintiff stated that "[p]eople don't understand but sometimes I know evil forces have been sent for me." R.pp. 230-237.
Even if there is substantial evidence to support the ALJ's decision to not give controlling weight to Dr. Walkup's opinion, "it does not follow that the ALJ had free reign to attach whatever weight to that opinion that he deemed fit." Dowling v. Comm'r of Soc. Sec. Admin., ___ F.3d ___, 2021 WL 203371, at *5 (4th Cir. Jan. 21, 2021). In Dowling, the Fourth Circuit Court of Appeals noted that "[w]hile an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion." Id. The Court found an error necessitating remand where only the factors of supportability and consistency were discussed by the ALJ and other factors (relating to the length, frequency, nature, and extent of the treating relationship) which appeared to "cut in [the claimant's] favor" were ignored. Id. Pursuant to 20 C.F.R. § 916.927(c), an ALJ is required "to consider all of the enumerated factors in deciding what weight to give a medical opinion." Arakas v. Comm'r of Soc. Sec. Admin., 983 F.3d 83, 107 n.16 (emphasis in original).
In this case, the ALJ did not specifically discuss the frequency, nature, and extent of the treating relationship. Dr. Walkup saw Plaintiff on a regular basis from October 2015 to July 2018, sometimes once a month and generally at least once every few months for medication management. Additionally, other providers at CAMHC regularly treated Plaintiff, and it is clear from the record that Dr. Walkup reviewed some of the progress reports and treatment notes. Dr. Walkup's opinions also appear to be supported by the December 2016 opinion of treating counselor, Ms. Marin, that:
The opinion of a licensed clinical counselor is not an acceptable medical source under the regulations, and Ms. Marin's opinion is not entitled to controlling weight, but such opinions are considered under the same factors listed above. See 20 C.F.R. § 416.927(c) and (f). The ALJ found that Ms. Marin's December 2016 opinion was only entitled to minimal weight because it was "a vague, conclusory statement with no objective medical support" and was inconsistent with the "mostly normal findings on objective examinations and good responses to prescribed treatments." R.p. 24.
[Plaintiff] has a serious diagnosis of schizoaffective disorder, depressive type, which is a progressive brain disease. [Plaintiff] will need constant monitoring and guidance under mental health.R.p. 305. In a February 2017 progress summary, Ms. Marin noted that Plaintiff had chronic mental health problems with delusions and hallucination, to include olfactory hallucinations, as a clinical justification for continued treatment/services. R.p. 366.
Although the ALJ notes that Dr. Walkup is a psychiatrist (R.p. 24), there is no indication that his specialty was considered. Instead, the ALJ gave more weight to the opinions of the state agency psychologists, affording their opinions partial weight. R.p. 23.
However, review of the ALJ's decision indicates that he failed to fully evaluate the opinions of the state agency psychologists, as non-examining and non-treating psychologists, under applicable regulation, which includes consideration of whether they had access to the full medical record and the opinions of the claimant's treating and examining physicians. 20 C.F.R. § 416.927(c)(3) (In weighing the opinions of nonexamining sources, "we will evaluate the degree to which these medical opinions consider all pertinent evidence in your claim, including medical opinions of treating and other examining sources."). The ALJ does not appear to have considered that the state agency psychologists, in their March and April 2017 opinions, could not have considered the treating psychiatrist's August 2018 opinion. Additionally, both of the state agency psychologists stated that the record lacked a medical opinion from any medical source (see R.pp. 91, 103), such that their findings may have been negatively influenced by a lack of a treating source medical opinion.
A state agency expert's opinion is not deemed unreliable simply because the opinion occurred before other evidence in the record. See Price v. Comm'r, Soc. Sec. Admin., No. 2:15-CV-4339-RBH-MGB, 2016 WL 7744395, at *8 (D.S.C. Dec. 29, 2016), report and recommendation adopted, 2017 WL 131843 (D.S.C. Jan. 13, 2017) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)) (recognizing that a delay always exists between the consultant's report and the ALJ's decision). Similarly, a treating physician's opinion that occurs after the state agency expert's opinion do not necessarily warrant greater weight. Geiger v. Astrue, No. 2:11CV00055, 2013 WL 317564, at *7 (W.D. Va. Jan. 27, 2013); Caudill v. Astrue, No. 2:11CV00034, 2012 WL 4458209, at *6 (W.D. Va. July 26, 2012). However, a significant change in a plaintiff's condition following the consultant's opinion may reasonably alter its validity. See Hampton v. Colvin, No. 1:14-CV-24505, 2015 WL 5304294 (S.D.W. Va. Aug. 17, 2015), report and recommendation adopted, No. CV 1:14-24505, 2015 WL 5304292 (S.D.W. Va. Sept. 9, 2015).
Dr. Laskis only mentions medical evidence from August 2015, September 2015, and December 2016. R.p. 88. Dr. Payne-Gair only mentions evidence from 2015 to 2017, with the last of the reports referenced dated August 1, 2017. R.p. 99. Thus, Dr. Laskis did not review a significant amount of the evidence including, as discussed above, Plaintiff's reports to Dr. Walkup in May 2017 that led to a medication change, and Ms. Marin's notations in 2017 of continued depression, anxiety, and delusional thinking. Dr. Laskis and Dr. Payne-Gair do not appear to have reviewed Dr. Walkup's report in June 2018 indicating that that Plaintiff had a constructed affect depressed mood, fair judgment, and fair insight, as well as the nurse's November 2017 report that Plaintiff felt paranoid and saw things out of the corner of his eye when watching television.
Additionally, the ALJ adopted the conclusion of Drs. Laskis that Plaintiff could accept supervision and interact appropriately with co-workers (R.p. 91) and of Dr. Payne-Gair that Plaintiff could relate appropriately to supervisors and peers (R.p. 103) without reconciling these statements with their findings that Plaintiff had moderate limitations in social interaction (R.pp. 88, 99), their findings that Plaintiff had moderate limitations in the ability to accept instructions and respond appropriately to criticism from supervisors (R.pp. 90, 102), and Dr. Payne-Gair's finding that Plaintiff was moderately limited in his ability to get along with coworkers without distracting them or exhibiting behavioral extremes (R.p. 102). It also is unclear that the ALJ's finding fully takes into account the ALJ's own step three finding that Plaintiff had moderate limitations in social interaction (R.p. 17), as well as Plaintiff's testimony that he did not get along with his co-workers and managers at his short-term (lasting only a couple of months) job washing dishes because people kept bothering him (R.pp. 44-50). Finally, it appears that some of the psychological consultants' findings that the ALJ rejected are in line with Dr. Walkup's opinion, thus possibly supporting Dr. Walkup's limitations as to Plaintiff's ability to relate to co-workers, interact with supervisors, and deal with the public. Under the circumstances, it is unclear that the ALJ's decision to discount these portions of the psychological consultants' opinions is supported by substantial evidence.
Further, it is unclear from the record that the ALJ meaningfully considered each of the factors outlined in § 416.927(c) before deciding how much weight to give Dr. Walkup's opinion. See Arakas, 983 F.3d at 107 n. 16; see also Dowling, 2021 WL 203371, at *5. Therefore, it is recommended that this action be remanded to the Commissioner to evaluate the opinions of treating psychiatrist Dr. Walkup in light of all the evidence and in accordance with controlling law. See Mascio v. Colvin, 780 F.3d at 636 (noting that "remand is necessary" where the court is "left to guess [at] how the ALJ arrived at his conclusions"); cf. Laws, 368 F.2d at 642 (Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion").
B. Remaining Allegations of Error
Because the undersigned has determined that the ALJ's treating physician analysis warrants remand, the undersigned declines to further address the remaining claims of error raised by Plaintiff. However, upon remand, the ALJ should take such claims of error into consideration. With respect to any remaining claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).
RECOMMENDATION
It is, therefore, recommended that the decision of the Commissioner be REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) for further administrative review.
The parties' attention is directed to the important notice on the next page.
/s/_________
Molly H. Cherry
United States Magistrate Judge January 26, 2021
Charleston, 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
Post Office Box 835
Charleston, South Carolina 29402
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).