Opinion
C. A. 23-4784-MGL-PJG
07-31-2024
PJ Ondeck, Plaintiff, v. Martin J. O'Malley, Commissioner of the Social Security Administration,[1]Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
[ ] Affirm
[X] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[X] Supplemental Security Income (“SSI”): Plaintiff's age at filing: 44
[X] Disability Insurance Benefits (“DIB”): Date last insured: June 30, 2017
[ ] Other:
Application Dated: March 24, 2015
Plaintiff's Year of Birth: 1971
Plaintiff's alleged onset Dated: October 29, 2013
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: April 7, 2023
On remand from the district court the ALJ applied the requisite five-step sequential process and found as follows:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes
[X] No
Step 2: [X] Plaintiff has the following severe impairments:
[D]egenerative disc disease; migraines; bipolar disorder; panic disorder; and vertigo (20 CFR 404.1520(c) and 416.920(c)).
[ ] Plaintiff does not have a severe impairment.
Step 3: [X] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds frequently; sitting for 6 hours; standing for 6 hours; walking for 6 hours; occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; occasionally balancing, stooping, kneeling, and crouching; never crawling; never work at unprotected heights; no work around moving mechanical parts and dangerous machinery; never operate a motor vehicle as an occupational requirement; must avoid concentrated exposure to extreme cold and extreme heat; limited to a work environment where the noise intensity level does not exceed a level 3 (moderate); able to perform simple, routine tasks but not at a production rate pace such as assembly line work; use judgment to perform simple work-related decisions; able to interact with supervisors occasionally; able to interact with coworkers occasionally, but no tandem or teamwork type functions/tasks; no public contact work; and dealing with changes in work setting to make simple work-related decisions. Any time off task needs can be accommodated through ordinary breaks.
[ ] Plaintiff could return to his/her past relevant work.
Step 5: [ ] Plaintiff could not return to his/her past relevant work, but using the Medical-Vocational Guidelines (“Grids”) as a framework supports a finding that Plaintiff is not disabled. 20 C.F.R. Pt. 404, Subpt. P, App'x 2.
[X] Plaintiff could not return to his/her past relevant work, but there are representative jobs in the national economy that Plaintiff can perform, as follows:
a garment folder (light, unskilled, SVP 2, DOT # 789.687-066, with approximately 39,000 jobs in the national economy); a production inspector (light, unskilled, SVP 2, DOT # 222.687-042, with approximately 345,000 jobs in the national economy); a stuffer (sedentary, unskilled, SVP 2, DOT # 731.685-014, with approximately 275,000 jobs in the national economy); and a packer (sedentary, unskilled, SVP 2, DOT # 715.684-026, with approximately 84,000 jobs in the national economy).
Date of Appeals Council decision: July 27, 2023
Part IV-Standard of Review
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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “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.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154 (citation omitted). 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].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issue for Judicial Review
Opinion evidence. The ALJ failed to properly consider the consistent opinions in the record supporting limitations that would lead to a finding of disability. Where the ALJ improperly disregards the opinion evidence, can his decision be supported by substantial evidence?
(Pl.'s Br., ECF No. 10.)
Oral Argument:
[] Held on __.
[X] Not necessary for recommendation.
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 416.913, 404.1527, 416.927. Because the instant claims were filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Plaintiff's applications for benefits were filed, unless otherwise specified.
As acknowledged by the ALJ, this matter was previously remanded for the ALJ for further explanation and consideration of the opinion evidence. Plaintiff is back before the court arguing that, notwithstanding the court's prior remand, the ALJ again erred in evaluating the opinion evidence from Dr. Jeffrey Smith, Plaintiff's treating specialist, and Dr. David Price, the Commissioner's consultative examiner. Plaintiff further argues that the ALJ failed to consider the consistency among the opinions from all the treating and examining physicians in weighing these opinions and erred in giving greater weight to the non-examining state agency reviewers.
The court observes that Plaintiff's argument section pertaining to the evaluation of Dr. Price's appears to incorrectly reference Dr. Junker (another consultative examiner) at times instead of Dr. Price.
The law applicable to Plaintiff's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c), 416.927(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide “a detailed, longitudinal picture” of a claimant's alleged disability. See id. The United States Court of Appeals for the Fourth Circuit has reiterated the treating physician rule in Arakas v. Commissioner, 983 F.3d 83 (4th Cir. 2020), explaining that it “requires that ALJs give ‘controlling weight' to a treating physician's opinion on the nature and severity of the claimant's impairment if that opinion is (1) ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) ‘not inconsistent with the other substantial evidence' in the record.” Id. at 106 (quoting 20 C.F.R. § 404.1527(c)(2)). If a treating physician's opinion is not accorded controlling weight, it still must be evaluated and weighed “pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). The Arakas Court observed that “SSR 96-2p further notes that ‘[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.' ” Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p). Importantly, a “treating physician's testimony is ignored only if there is persuasive contradictory evidence.” Id. at 107 (emphasis in original) (quoting Coffman v. Bowman, 829 F.2d 514, 518 (4th Cir. 1987)).
The federal regulations were amended effective March 27, 2017 with regard to applications filed on or after March 27, 2017 to rescind the provision that a treating physician's opinion must be accorded controlling weight in certain circumstances. However, as stated above, the instant applications were filed before March 27, 2017.
Moreover, ALJs are instructed to apply the above factors-including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion-to all medical opinions, including those from consultative or one-time examiners. 20 C.F.R. §§ 404.1527(c), 416.927(c). Further, the reviewing court should leave untouched an ALJ's decision regarding weight afforded a medical opinion unless the ALJ failed to give sufficient reason for the weight afforded. 20 C.F.R. §§ 404.1527(d), 416.927(d). In weighing these opinions, the ALJ is instructed to apply the same factors applicable to treating medical sources. 20 C.F.R. §§ 404.1527(f)(1), 416.927(f)(1). Importantly, more weight is generally given to the opinions of an examining source than a nonexamining one. 20 C.F.R. §§ 404.1527(c), 416.927(c). Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id. The regulations acknowledge that “not every factor for weighing opinion evidence will apply in every case because the evaluation of an opinion from a medical source who is not an acceptable medical source or from a nonmedical source depends on the particular facts in each case.” 20 C.F.R. §§ 404.1527(f)(1), 416.927(f)(1).
In considering the challenged opinions, the ALJ found the following:
Partial weight is given to the June 2015 opinion of David Price, M.D., because although he conducted a psychological examination of the claimant in person, his opinions are inconsistent with the medical record as a whole. After a mental health examination, Dr. Price opined that the claimant had a mild impairment in her activity of daily living; moderate to marked impairment in social function; moderate to marked impairment in concentration, persistence, and pace; and a moderate to marked impairment in adaptation. Dr. Price concluded that it was hard to see the claimant perform any substantial gainful activity (Exhibit 9F). The undersigned notes that the determination of whether an individual is disabled or unable to work is clearly reserved to the Commissioner pursuant to 20 CFR 404.1527 and 416.927. Statements that a claimant is disabled or unable to work are not given any special significance on the issue of disability. Therefore, Dr. Price's conclusion that it was hard to see the claimant perform any substantial gainful activity has not been considered in determining the claimant's residual functional capacity. Regarding the remainder of Dr. Price's opinion, it was based on an examination that occurred almost 8 years ago. To the extent that this opinion suggests the claimant may have moderate to marked mental work-related limitations, it appears to be based largely on the claimant's subjective reports during this single examination and is inconsistent with the record as a whole. Notably, the claimant's ability to perform even part-time work is inconsistent with marked mental limitations. Further, treatment records throughout the period in question
demonstrate that the claimant's mental symptoms have been largely stabilized with treatment, despite some fluctuations in her condition over time.
In April 2016, Jeffrey Smith, M.D., one of the claimant's psychiatric treatment providers, noted that given the severity of the claimant's mood and anxiety disorders, the claimant could not withstand the stress of work and would qualify for disability (Exhibit 13F/6). In September 2016, Dr. Smith stated that the claimant suffered from bipolar disorder with wide, poorly controlled swings of mood and behavior. In the office, she seemed normal at some visits. On other visits, she was tearful, distracted, and had difficulty concentrating. On the visits when she was depressed, the claimant cried freely, and was anxious and agitated. Dr. Smith opined that the claimant would be unable to attend to the most basic work without frequent interruption to task about half the time (Exhibit 14F). In April 2017, Dr. Smith noted that the claimant had a longstanding history of bipolar disorder that had not fully stabilized. She saw the P.A. on a regular basis. Dr. Smith indicated that the claimant suffered from classic manic and depressive episodes. Dr. Smith opined that the claimant was unable to withstand stress, be punctual/reliable, meet quotas/production standards, or effectively deal with peers, supervisors, and the public (Exhibit 18F/3). Little weight is given to psychiatrist Jeffrey Smith, MD., because although he was one of the claimant's treatment providers, he does not support his opinions with any substantive evidence that is generally consistent with the entirety of evidence in this claim; including testimony, reconciling other contrary medical evidence, and other evidence of function and work capability as discussed herein. According to Dr. Smith, the claimant is unable to focus and cannot attend the most basic work without frequent interruption to task (Exhibit 14F). Such an opinion is not supported by the claimant's daily activities as chronicled in the record, including her reported ability to perform part-time work for a portion of the relevant period, and is inconsistent with the other medical opinions in the file. Additionally, as noted by Dr. Smith, the claimant was generally seen by the PA. Treatment records document few visits in which Dr. Smith actually saw the claimant. Further, a review of records from Dr. Smith's office, Piedmont Psychiatric Services, from February 2015 through September 2018, indicates that the claimant's mental symptoms were generally stable and improved overall, despite occasional exacerbations and fluctuations in her mood, including one visit when she was having a panic attack. Any changes in symptoms were treated by adjustments to the claimant's medication regimen and did not require inpatient or emergency mental health treatment, as would be expected if the claimant's symptoms were as severe as Dr. Smith reported. While Dr. Smith indicated that the claimant's attendance would be unreliable due to her mental conditions, the claimant testified that it was her migraines and vertigo that caused her to miss work when she was attempting to work part-time.(Tr.743-44.)
Curiously, the ALJ apparently discounted the consultative examiner's opinion based on its age, but the age of the opinion in 2023 was due to the extended nature of this litigation. Dr. Price's 2015 opinion was issued during the relevant time period to these applications.
Plaintiff first challenges the ALJ's re-evaluation and the explanations offered in giving Dr. Smith's opinion little weight. Upon careful evaluation of the record, the parties' arguments, and the ALJ's decision, the court is constrained to agree.
The United States Court of Appeals for the Fourth Circuit has recently joined the other circuit courts' “growing conversation surrounding chronic disease, highlighting, in particular, the unique and subjective nature of chronic depression.” Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341, 368 (4th Cir. 2023). Although the ALJ appears to have applied each of the applicable factors in weighing Dr. Smith's opinion, the court cannot find these reasons are supported by the record. For example, Dr. Smith's opinion explicitly provides support for the opined limitations that included issues he and his physician assistant encountered adjusting her medicine as well as observations of fluctuation in her symptoms from visit to visit. See id. at 367-68 (noting that individuals with depression can “experienc[e] brief periods of diminished depression, which can appear-from the outside looking in-as overall improvement,” and that “[t]he ALJ focused on [claimant's] ‘improved' periods to reject the lower, more frequent states of her depression ....” which was error). Moreover, as argued by counsel, the opinions issued by doctors who had examined Plaintiff were actually consistent with or supportive of Dr. Smith's opinion. The only opinions that appear to contradict the opinions at issue are the opinions from the state agency record reviewers, which were issued prior to Dr. Smith's opinion. (See Tr. 742-45.) Thus, the ALJ appears to have discounted this opinion based on specious inconsistencies or simple notations of doing well. See Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (“An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' . . . or has failed to give a sufficient reason for the weight afforded a particular opinion[.]”) (internal citations omitted). The ALJ has failed to identify any examples of inconsistencies in the record that were not specious as to the specific limitations opined by Dr. Smith and has failed to recognize the consistency among the opinions discounted, such as the opinion from Dr. Price. See 20 C.F.R. § 404.1527(c); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (stating that “if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight”) (internal quotation marks and citation omitted).
Although the court generally remands decisions to the Commissioner for further administrative action, the court has the authority to award benefits. 42 U.S.C. § 405(g). Such an award is proper where the record is fully developed, and it is clear the Commissioner would be required to award benefits on remand. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was “wholly established” on the state of the record); see also Evans v. Heckler, 734 F.2d 1012, 1015 (4th Cir. 1984) (reversing, rather than remanding, where “the medical evidence overwhelmingly supports the claimant's position that he is unable to work and there is insubstantial evidence in support of the ALJ's conclusions that [claimant's] disabilities are ‘not severe' ”); Breeden v. Weinberger, 493 F.2d 1002, 1011-12 (4th Cir. 1974) (finding “it appropriate to reverse without remanding where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose”); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) (“Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than ‘reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A.”). The Fourth Circuit has also recently held that it was proper to remand for an award of benefits once a treating physician's opinion was properly credited. Arakas, 983F.3d at 112. In further support of this decision, the court notes that the administrative process for this claim has exceeded nine years, and notwithstanding previously remanding this matter for the ALJ to properly weigh the opinion evidence at issue, the ALJ was still unable to do so. Therefore, the court finds that an additional remand would serve no useful purpose and further delay is not warranted. Accordingly, the court recommends that this matter be remanded to grant Plaintiff's applications and award her disability benefits.
RECOMMENDATION
It is recommended that this matter be
[ ] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[ ] Reversed and remanded pursuant to □ Sentence Four □ Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[X] Reversed and remanded for an award of benefits.
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
901 Richland Street Columbia, South Carolina 29201
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).