Opinion
No. 7:17-CV-139-D
07-23-2018
LEATHA ANN SMITH, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-17, DE-20] pursuant to Fed. R. Civ. P. 12(c). Claimant Leatha Ann Smith ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded for further proceedings.
Claimant missed the deadline by which to file her motion, and filed the instant motion in response to the court's show cause order. [DE-16].
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability, DIB, and SSI on June 28, 2013, alleging disability beginning January 1, 2009. (R. 214-23). Her claims were denied initially and upon reconsideration. (R. 84-141). A hearing before the Administrative Law Judge ("ALJ") was held on September 24, 2015, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 49-80). On November 16, 2015, the ALJ issued a decision denying Claimant's request for benefits. (R. 27-48). The Appeals Council denied Claimant's request for review on January 23, 2017. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred by improperly weighing the opinion evidence. Pl.'s Mem. [DE-18] at 16-23.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since the alleged onset date. (R. 32). Next, the ALJ determined Claimant had the following severe impairments: degenerative disc disease; borderline intellect; bipolar disorder; and drug and alcohol abuse. (R. 32-33). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 33-35). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in mild restriction in activities of daily living and moderate difficulties in social functioning and concentration, persistence, or pace, with no episodes of decompensation of an extended duration. (R. 34). Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding she had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
[T]he claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours each in an 8-hour work day; however, the claimant is limited to understanding, remembering, and carrying out simple instructions. She is unable to perform production rate work and she should not have any ongoing public interaction.(R. 35-42). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work. (R. 42). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 42-43).
V. DISCUSSION
A. The ALJ's Evaluation of Opinion Evidence
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. §§ 404.1527(c), 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2). Though the opinion of a treating physician is generally entitled to "great weight," the ALJ is not required to give it "controlling weight." Craig, 76 F.3d at 590 (quotations & citations omitted). In fact, "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." Id.; see Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (stating "[t]he ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence.").
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account 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). While an ALJ is under no obligation to accept any medical opinion, see Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006), the weight afforded such opinions must nevertheless be explained. S.S.R. 96-2p, 1996 WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may not reject medical evidence for the wrong reason or no reason. Wireman, 2006 WL 2565245, at *8. "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).
Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore still apply to this claim. 82 Fed. Reg. 15263-01 & 15263-02 (Mar. 27, 2017). --------
Claimant contends that the ALJ committed the following three errors in assigning significant weight to the opinions of the state agency medical and psychological consultants: (1) failing to reconcile inconsistencies among the opinions related to whether Claimant was capable of sedentary or light work; (2) failing to adopt the finding that Claimant's gout was a severe impairment; and (3) rejecting properly supported opinions of treating and examining physicians. Pl.'s Mem. [DE-18] at 16-23.
1. State Agency Opinions
Claimant first points out that on initial review Claimant was limited to sedentary work. Id. at 16 (citing R. 97, 108). However, the initial review is conducted by a single decision maker ("SDM"), and the assessment of an SDM, who is not a medical source, is entitled to no weight. See Penn v. Berryhill, No. 4:16-CV-244-D, 2017 WL 3598526, at *5 (E.D.N.C. July 21, 2017) (citing Nicholson v. Astrue, Civ. No. 1:09cv271, 2010 WL 4506997, at *6 & n.2 (W.D.N.C. Oct. 29, 2010)), adopted by 2017 WL 3594260 (E.D.N.C. Aug. 21, 2017). Thus, there was no need for the ALJ to address the SDM's assessment.
Claimant also argues that there are contradictory findings by Dr. Robert Pyle on reconsideration regarding her capacity to work, i.e., that she is limited to sedentary work on her DIB claim and light work on her SSI claim. Pl.'s Mem. [DE-18] at 14 (citing R. 122, 138). However, on the DIB claim, Dr. Pyle determined there was insufficient evidence for the relevant time period to adjudicate the claim, and the limitation to sedentary work appears to be the finding of the "Disability Adjudicator/Examiner," who is not a medical source. (R. 119, 122-23); see Bartee v. Comm'r of Soc. Sec., No. 16-10083, 2017 WL 1173771, at *2 (E.D. Mich. Mar. 30, 2017) ("The Administration's internal regulations state in relevant part that: A team consisting of an MC or a PC and a disability examiner (DE) generally makes the disability determination. If there is no medical evidence in the file, the DE alone makes the determination."); Rockett v. Astrue, No. CIV.A. 11-2132, 2012 WL 6761597, at *5 (WD. La. Dec. 5, 2012) ("[A] disability examiner is not a medical doctor, and her opinion is not considered an acceptable medical source statement or afforded the same weight as an opinion by a medical or psychological consultant of the state agency."), adopted by 2013 WL 45894 (W.D. La. Jan. 2, 2013). On the SSI claim, Dr. Pyle limited Claimant to light work. (R. 134-35). Thus, there is no contradiction in Dr. Pyle's opinions for the ALJ to explain.
Claimant finally contends the state agency evaluations determined her gout was a "severe impairment," contrary to the ALJ's determination. Pl.'s Mem. [DE-18] at 17 (citing R. 131). However, this determination does not appear in the section of the decision signed by Dr. Pyle (R. 131), and in the section Dr. Pyle did sign he stated that "[Claimant] indicated gout but MER does not support" (R. 135). Accordingly, because Dr. Pyle did not opine on whether Claimant's gout was a severe impairment, there was nothing for the ALJ to reconcile in this regard.
2. Dr. Hensely
Claimant's treating physician, Dr. Kimberly Hensley, completed a physical RFC questionnaire, dated December 11, 2014. (R. 543-48). Dr. Hensley indicated she first saw Claimant on December 5, 2013, to address swelling and pain in bilateral feet, diagnosed gouty arthritis, and opined her prognosis was good. (R. 543). Dr. Hensley initially prescribed medication that helped, but also caused hair loss, so it was discontinued, and in February 2014, Claimant "started Uloric and has had few flares since [illegible]/14." Id. Dr. Hensley also opined that Claimant's bipolar disorder contributed to the severity of her symptoms. (R. 544). Dr. Hensley found the following limitations related to Claimant's impairments: frequent interference with attention and concentration; incapable of even "low stress" jobs due to chronic back and joint pain and frequent hospitalizations for mental health concerns;" walk no blocks without rest or severe pain, sit for 20 minutes before needing to stand, stand 5 minutes before needing to sit down, and sit for a total of four hours and stand or walk for a total of less than two hours in an eight-hour day; needs to walk for one minute every 60 minutes during the day; needs a sit stand option; take a 15-20 minute unscheduled break daily; elevation of legs above the heart for 50% of the time with prolonged sitting; use of an assistive device not required for occasional standing or walking; occasionally lift less than 10 pounds, rarely lift 10 pounds, and never lift 20 pounds or more; occasional postural movements of the neck; rarely twist, stoop, crouch, or climb and never climb ladders; significant limitations to reaching, handling, or fingering; absent from work more than four days per month due to impairments or treatment; and unable to perform sedentary work. (R. 544-47).
The ALJ attributed little weight to Dr. Hensley's opinion, explaining that
it is not supported by the treatment records that showed that the claimant exhibited a normal range of motion in her thoracolumbar and cervical spine and throughout her extremities, 5/5 strength in her upper and lower extremities, 5/5 grip strength, intact sensation, a negative straight leg raising test, and a normal gait. (Exhibit 8F). Treatment notes since April 2014 showed that the claimant's joint pain was stable with medication. (Exhibit 12F). December 2014 treatment notes showed that the claimant's low back pain was stable with Percocet. (Exhibit 12F). Overall, such evidence is inconsistent with Dr. Hensley's restrictions.(R. 41).
In weighing Dr. Hensley's opinion, and in formulating Claimant's RFC, the ALJ failed to address Claimant's gouty arthritis. (R. 38, 41). In finding Claimant's gout to be a non-severe impairment, the ALJ cited evidence of record from 2014 and 2015, documenting that Claimant's gout was controlled with medication. (R. 33) (citing Ex. 12F, 16F, 19F). However, while these records demonstrate that Claimant's gout was relatively stable (R. 479, 480-81, 484, 486, 489, 551, 594), they also indicate that she continued to experience intermittent gout flares (R. 597, 601), and Dr. Hensley listed gouty arthritis as Claimant's diagnosis on the opinion form (R. 543). Although Dr. Hensley stated that Claimant had experienced "few flares" since starting Uloric in February 2014 (R. 543), treatment notes subsequent to Dr. Hensley's opinion corroborate Claimant's testimony that she experienced additional gout flares from April through July 2015 (R. 597-99, 601-03). Claimant testified that her gout flares caused difficulty walking very short distances and that her gout had been severe since April 2015. (R. 36, 57-59). The ALJ did not address Claimant's testimony in this regard. See Mascio v. Colvin, 780 F.3d 632, 640 (4th Cir. 2015) (finding the ALJ's lack of explanation required remand where the decision lacked explanation of how he decided which statements to believe and which to discredit). The ALJ's failure to consider and explain the impact of Claimant's intermittent gout flares in evaluating Dr. Hensley's opinion and, additionally, on the RFC, was error. See Coniglio v. Berryhill, No. 3:16-CV-847-MR, 2018 WL 1161137, at *4 (W.D.N.C. Mar. 5, 2018) (where the ALJ finds a claimant to have both severe and nonsevere impairments, consideration is required of "the limiting effects of all of the Plaintiff's impairments, even those that are not severe, in assessing the Plaintiff's RFC") (citing S.S.R. 96-8p; 20 C.F.R. § 416.945(e)); Carver v. Colvin, No. 1:13CV13, 2015 WL 4077466, at *8-10 (M.D.N.C. July 6, 2015) (failure to consider the impact of the claimant's gout attacks, occurring three to four times a year, on his ability walk or stand for a full work day in order to perform light work required remand). Accordingly, it is recommended that this matter be remanded for further consideration of Dr. Hensley's opinion and of Claimant's RFC in light of the unaddressed evidence that Claimant continued to have intermittent gout flares despite her use of medication.
3. Opinions on Mental Health Impairments
Claimant takes issue with the ALJ's rejection of Dr. Metzler's opinion that Claimant's ability to relate to others, including fellow workers and supervisors, would be markedly affected by her paranoia, and argues it is supported by Dr. Egolf's opinion that her emotional issues would affect her ability to remain calm and non-emotional in a work setting, as well as Dr. Hosseini's opinion that Claimant lacked the ability to engage in social interaction at any level aside from attending her medical appointments. Pl.'s Mem. [DE-18] at 19 (citing R. 398-99, 467-68, 589).
Dr. Metzler found that Claimant's ability in "[r]elating to others including fellow workers and supervisors is markedly affected by her underlying paranoia and therefore if anything happens it is really a conspiracy against her." (R. 398) (emphasis added). In assessing the opinion of Dr. Metzler, a consultative examiner, the ALJ assigned it partial weight, imposing a restriction to no ongoing public interaction due to Claimant's paranoia and anxiety, but finding that there was no evidence in the record to support a marked limitation in Claimant's ability to relate to others. (R. 40). The ALJ did not explain how he determined that Claimant's paranoia and anxiety only impacts her ability to interact with the public and not with co-workers or supervisors, and a review of the treatment records cited by the ALJ (R. 400-22) shed no light on this distinction. Further, the ALJ found at step three that Claimant has moderate difficulties in social functioning, explaining "claimant reported that she was able to live with her husband and adult son," and "[t]reatment records noted she exhibited poor eye contact and had virtually no social functioning." (R. 34). This too provides no insight as to the reasoning for the ALJ's determination that Claimant's mental impairments would impact only her ability to interact with the public and not her ability to interact with supervisors and co-workers.
Claimant contends Dr. Egolf's opinion corroborates that of Dr. Metzler. Pl.'s Mem. [DE-18] at 19. The ALJ assigned little weight to the opinion of Dr. Egolf, a consultative examiner, finding it inconsistent with his own examination findings or other findings of record, but discussed only Dr. Egolf's findings regarding Claimant's borderline intellectual functioning and ability to perform simple work, and did not address Dr. Egolf's opinion regarding the impact of Claimant's emotional stability on her ability to interact with others in a work setting. (R. 40). Thus, the ALJ's consideration of Dr. Egolf's opinion does not support the ALJ's determination regarding the impact of Claimant's mental impairments on her ability to interact with co-workers and supervisors.
The ALJ also assigned little weight to the opinion of Dr. Hosseini, a treating psychiatrist, finding that his treatment notes indicated Claimant's mental health symptoms improved with medication when she was compliant with her treatment regimen. (R. 41). A review of the treatment notes cited by the ALJ indicate the worsening of Claimant's symptoms was often times attributed by Dr. Hosseini to medication non-compliance and that proper medication was helpful to Claimant. (R. 567, 569, 571, 573, 575, 578, 580, 582). Dr. Hosseini also addressed Claimant's lack of funds and insurance by prescribing generics and providing samples, and the records indicate Claimant received medication assistance with some prescriptions. (R. 566, 570, 572, 574, 576). However, nothing in the ALJ's discussion of Dr. Hosseini's opinion explains why Claimant's anxiety and paranoia warranted an exclusion from ongoing contact with the public, but no restriction on contact with co-workers or supervisors.
Finally, the ALJ's reasoning in relying on the opinions of the non-examining state agency evaluators is largely unexplained and conclusory (R. 41), and, thus, is of no help in discerning why the ALJ found Claimant's anxiety and paranoia warranted an exclusion from ongoing contact with the public, but no restriction on contact with co-workers or supervisors.
The weight attributed to Dr. Metzler's opinion is not supported by substantial evidence, where the ALJ committed error in failing to sufficiently explain and support his determination regarding the impact of Claimant's mental impairments on her ability to interact with others in the work place. By the ALJ failing to build "an accurate and logical bridge from the evidence to [the] conclusion[s]," the court is precluded from conducting a meaningful substantial-evidence review of the ALJ's decision. Monroe v. Colvin, 826 F.3d 176, 189-91 (4th Cir. 2016) (holding that the ALJ's explanation that he gave "limited weight" to medical opinions because "the objective evidence or the claimant's treatment history did not support" them and similarly cursory explanations of other opinions precluded meaningful substantial-evidence review (internal quotation marks omitted)) (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). However, errors may be found harmless if they do not impact the ultimate decision. See Jackson v. Berryhill, No. 7:15-CV-229-D, 2017 WL 685603, at *5 (E.D.N.C. Jan. 23, 2017) (citing Hurtado v. Astrue, No. 1:09-1073-MBS-SVH, 2010 WL 3258272, at *11 (D.S.C. July 26, 2010) (error in an opinion is harmless because it would not change the outcome of the ALJ's decision)), adopted by 2017 WL 694484 (Feb. 19, 2017).
The VE's testimony regarding whether a limitation on contact with co-workers and supervisors would preclude the jobs available under the RFC, as found by the ALJ, was equivocal. (R. 75-76). While indicating that the jobs did not require working in tandem with co-workers or more than minimal interaction with supervisors, the VE seemed to say that being in close proximity to others would be required. Id. Claimant testified that her severe social anxiety prevents her from being around people and that she does not even go to the grocery store with her husband (R. 54), and the ALJ noted this testimony but did not explain why he rejected it. (R. 36, 39). Accordingly, it is not clear that the failure to fully consider the extent of Claimant's ability to interact with co-workers and the public was harmless, and the case should be remanded for the ALJ for further consideration.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-20] be DENIED, and the case be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 6, 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
SUBMITTED, the 23rd day of July 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge