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concluding the case must be remanded because the ALJ's finding that the claimant would be off task up to nine percent of the day due to medication side effects "does nothing to inform a reviewing court of how ALJ Anderson arrived at the figure-nine percent of the workday-or what evidence in the record supports this calculation"
Summary of this case from Marshall v. SaulOpinion
No. 4:19-CV-00128-FL
06-09-2020
Vanessa Richardson, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Vanessa Richardson challenges Administrative Law Judge ("ALJ") William Anderson's denial of her application for social security income. Richardson claims that ALJ Anderson erred in (1) determining her residual functional capacity ("RFC") and (2) evaluating the medical opinion evidence. Both Richardson and Defendant Andrew Saul, Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 18, 20.
After reviewing the parties' arguments, the court has determined that ALJ Anderson erred in his determination. ALJ Anderson's RFC determination fails to explain how the evidence supports the conclusion that Richardson would be off-task for up to nine percent of the workday. But the undersigned finds no error in ALJ Anderson's reasons to accord less than controlling weight to the opinions of Richardson's treating physician. The undersigned magistrate judge thus recommends that the court grant Richardson's motion, deny the Commissioner's motion, and remand the matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In October 2014, Richardson applied for disability benefits and supplemental security income. In both applications, she alleged a disability that began in June 2014. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Richardson appeared before ALJ Anderson for a hearing to determine whether she was entitled to benefits. ALJ Anderson determined Richardson had no right to benefits because she was not disabled. Tr. at 26-40.
ALJ Anderson found that Richardson's disorder of the muscle, ligament, and fascia of the left knee, status post left knee replacement, and borderline intellectual functioning ("BIF") were severe impairments. Tr. at 29. ALJ Anderson also found that Richardson's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Anderson then determined that Richardson had the RFC to perform light work with other limitations. Tr. at 32. She can frequently lift and carry ten pounds, and can occasionally lift and carry 20 pounds. Id. Richardson can sit for four hours, stand for four hours, and walk for two to four hours in an eight-hour workday. Id. She needs the option to sit and stand as needed. Id.
Anderson can never operate foot controls with her left foot. Id. She can occasionally climb ramps and stairs and she can climb ladders and scaffolds on a less than occasional basis. Id. Richardson can occasionally balance, crouch, and stoop but she cannot kneel or crawl. Id.
Richardson may have occasional exposure to unprotected heights and moving mechanical parts. Id. She can occasionally operate a motor vehicle. Id. Richardson should work in a climate-controlled environment where she would be expected to work inside 95% of the workday, but she can occasionally go outside up to five percent of the workday. Id. And she can have occasional exposure to dust, fumes, and pulmonary irritants but no exposure to vibrations. Id.
Richardson is limited to simple, routine, repetitive tasks and simple, work-related decisions. Id. She needs to use one hand-held device. Id. Due to pain and medication side effects, Richardson would be off-task up to nine percent of the workday, along with normal breaks. Id.
ALJ Anderson concluded that Richardson could not perform her past relevant work as an order picker, personal care aide, short order cook, or sewing machine operator. Tr. at 39. But considering her age, education, work experience, and RFC, ALJ Anderson found that jobs existed in significant numbers in the national economy that Richardson could perform. Tr. at 39-40. These jobs include laundry marker, clerical assistant, and router. Id. Thus, ALJ Anderson found that Richardson was not disabled. Tr. at 40.
After unsuccessfully seeking review by the Appeals Council, Richardson commenced this action in September 2019. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Following a fall at work in 2013, Richardson underwent an MRI which showed grade IV chondromalacia, cartilage erosion, synovitis, bone marrow edema, and a meniscus tear in February 2014. Tr. at 397-98. Provers administered a cortisone shot to her knee and restricted Richardson to sedentary work. Tr. at 400-02.
Four months later, Richardson had limited activities of daily living and a limited ability to work. Tr. at 407. She rated her pain as seven or eight on a ten-point scale. Id. Later that month, she underwent arthroscopic chondroplasty of her patella and debridement of the medial meniscus. Tr. at 409.
Richardson reported continued knee pain following surgery, as well as buckling. Tr. at 411. Providers referred her for physical therapy. Tr. at 412. By August 2014, Richardson rated her pain as eight or nine out of ten, she reported experiencing falls, and she had a limited range of motion. Tr. at 413-14. She completed her physical therapy two months later, but her pain had not improved, and she walked with crutches. Tr. at 417, 419.
The month after, Dr. Clifford Wheeless, II, an orthopedist, began treating Richardson. Tr. at 526. She used a knee brace and crutches. Tr. at 522. An MRI showed low-grade chondromalacia development on the patella with bursa fluid developments. Tr. at 525.
Dr. Wheeless performed a patellofemoral replacement on Richardson's left knee two months later. Tr. at 517. He directed her not to work from February through July. Tr. at 38.
Following surgery, Richardson's pain continued. Tr. at 652, 655. She participated in physical therapy and made slow progress. Tr. at 513, 652, 655.
About a month after her surgery, Richardson saw Dr. Misha Harrell for a consultative examination. Tr. at 450. Dr. Harrell noted Richardson's significant pain, inability to bear weight, and decreased range of motion. Id. He concluded that Richardson had no limitation on her ability to sit but found she was moderately limited in her ability to stand and severely limited in her ability to walk and lift. Tr. at 451.
Almost two months following her surgery, Richardson's pain level was eight out of ten. Tr. at 494. Her left quadricep had atrophied and she continued to walk with crutches. Id. Despite physical therapy, water therapy, and walking, her knee remained tender to palpitation with reduced range of motion. Tr. at 491.
But Richardson's condition was improving by April 2015. Tr. at 488. Although her quadricep atrophy continued, Richardson had fill flexion and extension of her knee. Id. She walked with a single crutch. Id.
Two months later, Richardson reported weakness in her quadricep and sciatic pain. Tr. at 461, 474. Dr. Wheeless wanted to return Richardson to work despite her pain. Tr. at 475. In July 2015, Dr. Wheeless allowed Richardson to work at the sedentary level from July through September, and again concluded she could not work from September through December. Tr. at 38, 460.
Richardson continued to experience numbness in her leg and her pain remained unchanged. Tr. at 988. She received a cane and instruction on how to use it. Tr. at 985, 989. But because of her posture and use of an assistive device, Richardson developed back pain. Tr. at 982.
By March 2016, Richardson had made some slow progress. Tr. at 944. While her left quadricep had atrophy, she could hold her leg straight and walk with a cane. Tr. at 939. Dr. Wheeless opined that Richardson should remain out of work from May through July, which he later extended through September. Tr. at 38.
Richardson continued to report knee pain and weakness six months later. Tr. at 925. Providers administered an injection for her back pain. Tr. at 926.
Sherry Gallagher-Whitlock, D.P.T., evaluated Richardson's residual functional capacity in January 2017. Gallagher-Whitlock concluded that Richardson could occasionally lift and carry up to ten pounds. Tr. at 793. She limited Richardson to sedentary work, but noted that greater functional capacities remained possible. Id.
In February 2017, Dr. Wheeless opined that Richardson could not lift or carry more than five pounds or sit, stand, or walk for more than 15 minutes at a time. Tr. at 904. He concluded she could not work at that time. Id. Two months later, Dr. Wheeless revised his findings, concluding that Richardson could perform light work. Tr. at 899.
Through May 2017, Richardson's knee and back pain continued, she walked with a cane, and she took pain medications. Tr. at 895, 899, 901.
D. Residual Functional Capacity
Richardson maintains that the RFC is flawed because ALJ Anderson did not include all of her limitations or build a "logical bridge" between the evidence and his conclusions. The Commissioner contends that the RFC includes all of Richardson's well-supported limitations. The undersigned finds that ALJ Anderson's RFC determination fails to explain how he concluded that Richardson would be off task none percent of the workday.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "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)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
In Mascio, the Fourth Circuit found that a limitation to simple, routine tasks or unskilled work may fail to address a moderate limitation in concentration, persistence, or pace. 780 F.3d at 638. The Fourth Circuit "agree[d] with other circuits that an ALJ does not account for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work" because "the ability to perform simple tasks differs from the ability to stay on task." Id. (quotation omitted). Because the ALJ failed to explain why the plaintiff's "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity," the Fourth Circuit remanded Mascio. Id. Although an ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-CV-466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015).
At step three, ALJ Anderson found that Richardson's mental impairments caused moderate limitations in concentrating, persisting, or maintaining pace. Tr. at 31. The RFC limited Richardson to simple, routine, repetitive tasks and simple, work-related decisions. Tr. at 32. It also found that she would be off-task up to nine percent of the workday due to pain and medication side effects. Id.
Pointing to the recent Fourth Circuit decision in Shinaberry v. Saul, the Commissioner maintains that a limitation to simple, routine, repetitive tasks may sufficiently address a claimant's moderate limitations in concentration, persistence, or pace. 952 F.3d 113 (4th Cir. 2020). Shinaberry had borderline intellectual functioning that caused moderate limitations in concentration, persistence, or pace at step three. The RFC determination limited Shinaberry to simple, routine, repetitive tasks. Although Shinaberry asserted that the ALJ failed to consider her moderate limitation in concentrating, persisting, or maintaining pace, the ALJ found that additional mental restrictions were unwarranted. The ALJ observed that despite her lifelong borderline intellectual functioning and statements that she had trouble concentrating and completing tasks, Shinaberry's education, GPA, class rank, and IQ scores, coupled with her long work history as a cashier and sales associate, showed that limiting her to simple, routine, repetitive tasks addressed any deficits in her concentration, persistence, or pace.
The Commissioner asserts that the additional mental limitations in the RFC distinguish this case from Mascio. Standing alone, a limitation to simple, routine tasks may not comply with Mascio because it does not sufficiently represent a moderate limitation in concentration, persistence, or pace. ALJ Anderson also limited Richardson to simple, work-related decisions. But this added restriction may still not be sufficient to distinguish the RFC from Mascio's holding. See, e.g., Phillips v. Berryhill, No. 9:17-CV-01945-DCN, 2018 WL 6604228, at *4 (D.S.C. Dec. 17, 2018) (under Mascio and other cases, limitations to simple, routine, repetitive tasks, simple work-related instructions and decisions, few workplace changes, and occasional interactions do not address a claimant's limitations in concentration, persistence, or pace and his ability to work a full day); Carter v. Berryhill, No. 8:17-CV-01277-PMD-JDA, 2018 WL 3353069, at *9 (D.S.C. June 18, 2018) (remanding where ALJ failed to explain how a limitation to "simple, routine, repetitive tasks not performed in a fast paced production environment; involving only simple work-related instructions and decisions and relatively few work place changes" and to "occasional interaction with co-workers and members of the general public" addressed claimant's moderate difficulties in concentration, persistence, and pace because it did not discuss his ability to stay on task), adopted by 2018 WL 3344649 (D.S.C. July 9, 2018); Thomas v. Colvin, No. 7:15-CV-101-KS, 2016 WL 5408114, at *3 (E.D.N.C. Sept. 28, 2016) (remanding case under Mascio where RFC limited claimant to simple, routine, repetitive tasks with infrequent and gradual changes and only casual interaction with the public because it did not fully account for claimant's moderate limitations in concentration, persistence, or pace); Desilets v. Colvin, No. 2:14-CV-1693-RBH, 2015 WL 5691514, at *4-5 (D.S.C. Sept. 28, 2015) (finding a limitation in the RFC to "simple, repetitive tasks that are low stress and require no major decision-making or changes in the work setting" did not "sufficiently address the claimant's limitations in concentration, persistence, or pace as they relate to the RFC"); Weeks v. Colvin, No. 5:14-CV-155-D, at *4 (E.D.N.C. Sep. 8, 2015) (limitation to simple, routine, repetitive tasks with only occasional contact with the public and few workplace changes did not sufficiently address claimant's limitations in pace); Jones v. Colvin, No. 4:14-cv-200-RN, 2015 WL 4773542, at *6 (E.D.N.C. Aug. 13, 2015) (limitations to simple, routine, repetitive tasks in a low production occupation, with no complex decision making, constant change or dealing with crisis situations did not adequately address a claimant's moderate limitations in concentration, persistence and pace).
The RFC determination also added a limitation that found Richardson would be off-task up to nine percent of the workday. Tr. at 32. So, it appears that the RFC addressed not only Richardson's ability to perform tasks but also her ability to stay on task.
But the court need not decide whether the added restrictions follow Mascio's holding and adequately account for Richardson's moderate difficulties in concentration, persistence, and pace. Instead, the question presented is whether ALJ Anderson built a "logical bridge" from the evidence in the administrative record to his specific finding of Richardson's time of-task. Because there is no "logical bridge" between the evidence and the conclusion that Richardson would be off task up to nine percent of the workday, this finding lacks the support of substantial evidence and establishes a basis for remand.
ALJ Anderson found that Richardson would be off-task due to pain and medication side effects. Tr. at 32. While this explains why she would be off-task, it does nothing to inform a reviewing court of how ALJ Anderson arrived at the figure—nine percent of the workday—or what evidence in the record supports this calculation.
ALJ Anderson noted that "based on the claimant's alleged side effects from her medication, I find that the claimant would be off task up to nine percent of the of day in addition to normal breaks." Tr. at 35. But other than this cursory determination, ALJ Anderson did not expound upon his basis for this conclusion. The rest of his discussion fails to explain ALJ Anderson's reasoning as to why Richardson's medication side effects translate into her being off task nine percent of the time.
Other courts addressing a specific percentage of time off-task have reached similar conclusions. See Cannon v. Berryhill, No. 1:18-CV-285, 2019 WL 7875158, at *5-6 (W.D.N.C. Dec. 23, 2019) (remanding case in which there was no basis for ALJ's reference that claimant would be off-task nine percent of eight-hour workday); Patricia W. v. Berryhill, No. 1:19-CV-00009, 2019 WL 6790512, at *3 (D. Md. Dec. 12, 2019) (although evidence suggested that claimant had trouble staying on task, remand was warranted because ALJ failed to explain how she concluded that the claimant would be off task of 10% of the workday); Kilgo v. Saul, 3:13-CV-312-RJC-DSC, 2019 WL 3719609, at *4 (W.D.N.C. Aug. 7, 2019) (finding no logical bridge between the evidence and ALJ's RFC that claimant could perform simple, routine, repetitive tasks, in a stable environment at a nonproductive pace, and would be off task for 9% of the time for an eight-hour workday); Conary v. Berryhill, No. 2:18-CV-01228, 2019 WL 3216041, at *9 (S.D.W. Va. June 25, 2019), (ALJ discussed claimant's physical impairments, pain, and mental impairments, he did not articulate which impairments or symptoms caused him to be off task or provide a basis for the specific assessment that he would be off task for no more than five percent of the workday), adopted, 2019 WL 3211268 (S.D.W. Va. July 16, 2019); Lovato v. Berryhill, No. 6:16-CV-00046-JR, 2017 WL 2371096, at *4 (D. Or. May 9, 2017), adopted 2017 WL 2369377 (D. Or. May 31, 2017) (court could not discern what substantial evidence supported ALJ's conclusion that plaintiff would be off task 9% of the time, beyond Vocational Expert's testimony that larger percentage would require finding of disability); Oliverson v. Berryhill, No. 2:16-CV-01538-KLS, 2017 WL 1381814, at *4 (W.D. Wash. Apr. 17, 2017) ("The Court also agrees with plaintiff that the ALJ failed to point to any evidence in the record—or offer any explanation—to support the limitation of being off task for up to 9% of the time. Accordingly, the ALJ erred here as well."). But see Richardson v. Berryhill, No. 5:15-CV-173-RJC-DSC, 2019 WL 1354042, at *3 (W.D.N.C. March 26, 2019) (because ALJ "provided ample discussion of how [a plaintiff's] mental impairments impact[ed] her ability to perform work-related tasks," RFC that limited a plaintiff to a nonproduction pace passed muster "because the ALJ contextualized and explained how he reached his conclusion[.]").
Without any explanation, a reviewing court must guess from where the nine-percent figure came and why this limitation adequately accounts for Richardson's limitations. But Mascio and its progeny prohibit courts from such speculative inquiry. So remand for further explanation of Richardson's time off-task is appropriate.
The undersigned also notes the curious nature of the off-task figure. At the hearing, the Vocational Expert ("VE") testified that an employer's off-task tolerance was less than 15% of the workday. Tr. at 70. But an employee who was off-task only nine percent of the workday could still engage in competitive employment. Id.
E. Medical Opinion Evidence
Richardson also asserts that ALJ Anderson erred in evaluating the opinion of her treating physician, Dr. Wheeless. The Commissioner contends that ALJ Anderson properly explained why he did not give more weight to this provider's assessment. Because ALJ Anderson articulated sufficient reasons for the weight he assigned to the medical opinions, the undersigned finds no error in ALJ Anderson's consideration of this evidence.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight, but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, deserve no special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
"In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). But "[i]n some cases, the failure of an ALJ to explicitly state the weight given to a medical opinion constitutes harmless error, so long as the weight given to the opinion is discernible from the decision and any grounds for discounting it are reasonably articulated." Bryant v. Colvin, No. 5:11-CV-648-D, 2013 WL 3455736, at *5 (E.D.N.C. July 9, 2013) (internal quotation marks and citations omitted).
As noted above, Dr. Wheeless issued several opinions, usually covering a period of two to three months, limiting Richardson to light or sedentary work, as well as opinions that she could not work. ALJ Anderson gave little weight to these assessments. Tr. at 38. He noted that any finding that Richardson could not work is an issue reserved to the Commissioner. Id. ALJ Anderson further remarked that Dr. Wheeless's opinions were inconsistent with his own records and with other medical evidence. Id.
Richardson contends ALJ Anderson's reasons to accord less weight to Dr. Wheeless's opinions are flawed because he failed to consider Dr. Wheeless's underlying examination findings on which he premised his conclusion that she could not work. Richardson also argues that Dr. Wheeless's opinions match both his treatment notes and with other evidence in the record. And Richardson maintains that ALJ Anderson failed to evaluate Dr. Wheeless's opinion under the appropriate regulatory factors.
The undersigned cannot agree with Richardson's contentions. First, the ultimate issue of disability is one reserved to the Commissioner. So Dr. Wheeless's findings that Richardson could not work deserve no special weight. And ALJ Anderson considered the evidence on which Dr. Wheeless based his assessments. The decision reflects that ALJ Anderson discussed several of Dr. Wheeless's treatment records and his findings. Tr. at 34-36. So Richardson's first argument challenging the weight ALJ Anderson afforded Dr. Wheeless's opinion is unpersuasive.
Richardson's contention that ALJ Anderson wrongly concluded that Dr. Wheeless's findings conflicted with other evidence is similarly unconvincing. ALJ Anderson pointed out that Dr. Wheeless recommended that Richardson walk several miles each day to strengthen her knee. Tr. at 38. But this instruction conflicts with his concurrent conclusion that she could not do any work, even at the sedentary level. Tr. at 38, 841.
Dr. Wheeless's opinions also conflict with examination findings that note her knee, while tender, was stable and had full range of motion. Tr. at 38. And Richardson's knee condition did not prevent her from walking with a cane. Id. Such generally normal or mild findings contradict the extreme limitations set forth in Dr. Wheeless's assessments.
Finally, Richardson contends that ALJ Anderson failed to consider the regulatory factors such as Dr. Wheeless's treatment relationship with her, the length of his treatment, and his specialty. The undersigned disagrees. ALJ Anderson discussed several of Dr. Wheeless's records, which note his orthopedic specialty. And in evaluating those records, ALJ Anderson implicitly noted the length and frequency of the treating relationship. See tr. at 34-36. Finally, ALJ Anderson compared Dr. Wheeless's findings to other evidence in the record to determine the supportability and consistency of his assessments. Tr. at 34-36, 38. And as the Commissioner notes, the regulations merely instruct and ALJ to consider, not discuss, the several factors in weighing medical opinions.
Finding no error in ALJ Anderson's consideration of Dr. Wheeless's opinions, the undersigned recommends that the court deny Richardson's motion on this issue.
III. Conclusion
For all these reasons, the undersigned recommends that the court grant Richardson's Motion for Judgment on the Pleadings (D.E. 18), deny Saul's Motion for Judgment on the Pleadings (D.E. 20), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: June 9, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge