Opinion
C/A No.: 1:18-cv-01765-RMG-SVH
04-11-2019
James Ansel Stewart, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On November 6, 2014, Plaintiff filed an application for DIB in which he alleged his disability began on February 26, 2014. Tr. at 196-99. His application was denied initially and upon reconsideration. Tr. at 93, 102, 117-18, 121, 126. On April 4, 2017, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Jerry W. Peace. Tr. at 39-74 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 13, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 13-35. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 27, 2018. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the hearing. Tr. at 48. He completed the twelfth grade. Tr. at 49-50. His past relevant work ("PRW") was as a combination welder, heavy equipment operator, and dump truck driver. Tr. at 66-67. He alleges he has been unable to work since February 26, 2014. Tr. at 196-99.
Plaintiff received treatment for an enlarged prostate, testosterone levels, and urinary issues. Tr. at 530-32 (July 3, 2014), 527-29 (July 9, 2014), 533-35 (July 31, 2014), 546-48 (August 6, 2014), 376 (August 29, 2014), (536-38 (April 2, 2015), 539-42 (December 11, 2015), 543-45 (December 23, 2015), 549-57 (reflecting lab results). He was also treated for foot pain. Tr. at 602-05, 656-61, 676-77 (March 2016). These records have not been discussed in detail because they are not at issue in this case.
a. Evidence Submitted to the ALJ
On April 23, 2013, Plaintiff presented to Theresa Bishop, M.D. ("Dr. Bishop"), at Western Carolina Psychiatric Associates ("Western Carolina"), for a follow-up visit of recurrent depression and irritability. Tr. at 770-72. Plaintiff reported he was "overall doing significantly better than his last visit" and was less depressed. Id. Dr. Bishop noted Plaintiff reported low energy, but described "multiple enjoyable activities." Id. Dr. Bishop assessed dysthymic disorder and recurrent major depression in partial remission. Id.
On July 19, 2013, Plaintiff presented to Emerald City Chiropractic for neck and back pain and completed two therapeutic exercises. Tr. at 331; see also Tr. at 332-43 (providing four visits between January and June 2011).
On July 22, 2013, Plaintiff presented to Dr. Bishop for depression, anxiety, and irritability. Tr. at 773-75. Plaintiff reported he was "[n]ot doing well," he had been more depressed and irritable over the prior two months, and he experienced stress at work, especially when he traveled out of town. Id. Plaintiff also reported he felt tired, had frequent headaches, and worsened concentration. Id. Dr. Bishop found Plaintiff had an adequate fund of knowledge and a linear thought process that was logical and goal-directed. Id. Dr. Bishop also found Plaintiff was appropriate, active, and alert, but his mood and affect were anxious, depressed, and restricted. Id. Dr. Bishop assessed dysthymic disorder, recurrent major depression in partial remission, and generalized anxiety disorder. Id.
On August 1, 2013, Plaintiff presented to Dr. Bishop for follow up. Tr. at 776-78. Plaintiff reported he was "doing much better," was "less irritable," had not lost his temper, and his energy, concentration, and enjoyment had improved. Id. Plaintiff's physical and psychiatric exams were normal. Id. Dr. Bishop assessed dysthymic disorder, generalized anxiety disorder, and recurrent major depression in partial remission and continued his medications. Id.
On September 5, 2013, Plaintiff presented to Dr. Bishop and reported "doing pretty well overall." Tr. at 779-81. Dr. Bishop found Plaintiff's physical and psychiatric exams were normal, his mood and affect were less depressed and anxious, and he was progressing slowly towards his goal. Id. Dr. Bishop assessed dysthymic disorder, generalized anxiety disorder, and recurrent major depression in partial remission and continued his current medications. Id.
On October 31, 2013, Plaintiff presented to Dr. Bishop and reported his mood had "been pretty stable," work was "going okay" and tolerable, he hunted with family and friends recently, and he continued to volunteer at the fire department. Tr. at 782-84. Plaintiff's physical and psychiatric exams were normal. Id. Dr. Bishop noted Plaintiff's anxiety and depression had improved and continued his current medications. Id.
On January 22, 2014, Plaintiff presented to Family Healthcare Ware Shoals ("Ware Shoals"). Tr. at 348. His examination was normal for all results, including judgment, memory, and mood. Tr. at 350-51. Heather Owens, N.P. ("Nurse Owens"), assessed lumbar strain and prescribed Methylprednisolone. Tr. at 351.
On February 26, 2014, Plaintiff presented to Dr. Bishop for follow up of his depression and anxiety. Tr. at 785-87. Dr. Bishop noted:
[Plaintiff is] [n]ot doing well. Very depressed. Mood swings from depressed to anxious to angry, changing within few hours. Has broken things out of anger. Wishes he could run away from everything and everybody. Feels that he has given up. Has had thoughts of cutting himself. Would kill himself if he could figure out a way to do this that would not look like suicide . . . very stressed by working out of town 2-3 weeks per month . . .Tr. at 785. Plaintiff also reported worsened depression, anxiety, sleep, energy, concentration, and enjoyment with increased suicidal thoughts. Id. Dr. Bishop noted Plaintiff exhibited normal concentrating ability, intact memory and judgment, and adequate fund of knowledge, with a linear thought process that was logical and goal-directed. Id. However, Plaintiff's mood and affect were anxious, depressed, and restricted. Id. Dr. Bishop became concerned for Plaintiff's safety and scheduled an appointment for him to be admitted to the Carolina Center for Behavioral Health ("Behavioral Health"). Tr. at 787.
Later on February 26, 2014, George Jacob, M.D. ("Dr. Jacob"), at Behavioral Health, noted:
[Plaintiff] states he has "thoughts of suicide" and "thoughts of shooting other people" . . . [Plaintiff] states "if something goes wrong I just go to pieces. If I'm having a good day I don't have these thoughts." [Plaintiff] states he does not like to be around a lot of people, he does not like loud noises. He endorses having racing thoughts in the past. . . . [Plaintiff was] unsure if he hears voices or if it is [his] conscience. . . . [Plaintiff] states he has homicidal thoughts and anger, he states he wants to shoot people, but no one in specific. . . . [Plaintiff] reports feeling helpless, he does not have hope for the future. He reported feeling worthless. . . . His concentration sometimes is impaired . . . [Plaintiff] reports increased anxiety regarding work situation and finances. [Plaintiff] stated that he has been taking his medications as prescribed. [Plaintiff] has impaired [activities of daily living ("ADLs")].Tr. at 314, 317. Plaintiff "was admitted voluntarily for treatment of increased depression and agitation, he was stabilized through med[ication] management, group work, and psychoeducation," and "appeared to be at baseline [at] discharge" on March 5, 2014. Tr. at 314-15, 314-27. Plaintiff was discharged with medications, including Trazadone, Hydrochlorothiazide, Testosterone, Effexor, and Wellbutrin, and appointments to see his psychiatrist, Dr. Bishop, and his primary care provider, John Baker, M.D. ("Dr. Baker"). Tr. at 315. His GAF score was 25 at admission and 50 at discharge. Tr. at 316, 319.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 21-30 reflects behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM-IV-TR.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
On March 17, 2014, Plaintiff presented to Dr. Bishop for follow up after his recent hospitalization. Tr. at 788-90. Plaintiff reported he had been doing well until he became more anxious that day. Id. Plaintiff also reported panic attacks and nervousness, but "somewhat improved" depression symptoms. Id. Dr. Bishop observed Plaintiff's mood and affect were anxious, restricted, and less depressed, but he was appropriate, active, and alert. Id. Dr. Bishop also observed Plaintiff's judgment and insight were intact with a linear, logical, goal-directed thought process. Id. Dr. Bishop noted Plaintiff's depression and anxiety were improved, but not resolved and his anxiety worsened as he contemplated return to work the following month. Id.
Later on March 17, 2014, Plaintiff reported to Emerald City Chiropractic for occasional neck pain and frequent low back pain and completed two therapeutic exercises. Tr. at 330.
On March 18, 2014, Plaintiff presented to Ware Shoals to follow up on his "nerves" and chest pain. Tr. at 352-57. Plaintiff reported he was scheduled to return to work on April 3, 2014, felt overwhelmed, and had "bad thoughts," including suicide. Id. Dr. Baker noted Plaintiff appeared depressed and his general appearance was abnormal. Tr. at 353-54. Dr. Baker assessed morbid obesity, depression, gastroesophageal reflux disease ("GERD"), attention deficit disorder, lumbosacral disc degeneration, and fatigue. Tr. at 354, 386-92. An electrocardiogram ("ECG") was abnormal. Tr. at 393-95.
On March 19, 2014, Dr. Bishop completed a medical certification for Plaintiff's employer under the Family Medical Leave Act and stated he would not be able to return to work due to his major depression and generalized anxiety disorder. Tr. at 751-53. Based on her treatment of Plaintiff, Dr. Bishop estimated his period of incapacity began on February 26, 2014, and would end on April 3, 2014, with the additional treatment scheduled, including medications and weekly sessions. Id.
On April 2, 2014, Plaintiff presented to Dr. Bishop and reported his overall mood was better, he felt more relaxed, and enjoyed things more often. Tr. at 791-93. Dr. Bishop noted Plaintiff's memory was intact, his attention and concentration were normal, he displayed adequate knowledge, he exhibited normal movement, his mood and affect were less depressed and anxious, his thought process was logical and goal-directed, and he exhibited no abnormal thoughts. Id. Dr. Bishop discussed Plaintiff's job, noting it had been the source of several depressive episodes. Id. Dr. Bishop concluded Plaintiff's depression and anxiety had improved overall, but he was overwhelmed at the thought of returning to work, and she extended his medical leave. Id., Tr. at 750.
On April 17, 2014, Plaintiff presented to Ware Shoals for a check-up. Tr. at 358-63. Dr. Baker noted Plaintiff appeared depressed and his general appearance was abnormal. Id. Dr. Baker assessed benign essential hypertension, GERD, morbid obesity, acute prostatitis, depression, endocrine disorder, and fatigue, and he modified Plaintiff's medications. Id.
On April 18, 2014, Dr. Bishop completed an attending physician's statement of continued disability for mental health claims through Plaintiff's employer. Tr. at 748-49. Dr. Bishop noted Plaintiff had been diagnosed with recurrent major depression, generalized anxiety disorder, and had a GAF score of 50. Id. Dr. Bishop noted Plaintiff was moderately groomed, he was cooperative, his thought process was logical, his insight was good, his psychomotor activity was within normal limits, but he had reading and writing difficulties and his attention and concentration had worsened with recent depression, with some improvement. Id. Dr. Bishop extended Plaintiff's leave from work for an additional six weeks because she did not feel Plaintiff could return to work, as the thought of returning increased his anxiety so much that he became suicidal. Id. Dr. Bishop noted Plaintiff would continue treatment with Michael Smith, M.D. ("Dr. Smith"), because she was leaving the practice. Id.
On May 9, 2014, Plaintiff presented to Carolina Orthopaedic Center due to right shoulder pain upon referral by Dr. Baker. Tr. at 473-76. Plaintiff reported he had been excused from work due to depression issues and he injured his arm when he flipped a four-wheeler the prior month. Tr. at 475. Alan G. Posta, Jr., M.D. ("Dr. Posta"), performed a physical exam and reviewed radiographs and a magnetic resonance image ("MRI"). Tr. at 475. Dr. Posta noted Plaintiff had a restricted range of motion ("ROM") in his cervical spine, an acromion with degenerative changes in the acromioclavicular ("AC") joint, an abnormal signal in the rotator cuff consistent with a partial thickness cuff tear, AC joint arthritis, and fluid around the biceps tendon. Id. He assessed a rotator cuff tear, AC joint arthritis, and biceps tendinitis in the right shoulder, but ruled out a superior labral tear from anterior to posterior ("SLAP"). Id. He also assessed hypertension, hypercholesterolemia, hypertriglyceridemia, depression, GERD, and morbid obesity. Tr. at 475-76. Dr. Posta administered an injection and noted improvement. Tr. at 476. Dr. Posta prescribed Voltaren and Pennsaid, started Plaintiff on a home-exercise program, and scheduled a follow-up appointment. Id.
On April 29, 2014, a right shoulder x-ray was normal. Tr. at 378. On May 6, 2014, a right shoulder MRI reflected supraspinatus and infraspinatus tendinopathy or partial tears and a superior labral tear. Tr. at 377.
On May 12, 2014, Plaintiff presented to Dr. Smith, at Western Carolina, regarding his depression and anxiety. Tr. at 794-97. Plaintiff and his wife reported his mood had improved slightly since his prior visit with Dr. Bishop. Id. Plaintiff's "[p]rimary fear [was] if [he] return[ed] to work at this time he may 'go off' and hurt someone." Id. Plaintiff reported a low frustration tolerance. Id. Plaintiff's wife noted he seemed to be "okay as long as [she was] around." Id. Plaintiff reported a depressed mood, nervousness, suicidal and homicidal thoughts, and worsened energy, concentration, and enjoyment. Id. Dr. Smith observed Plaintiff was fidgety, anxious, maintained poor eye contact, and was irritable, but he was alert and showed a linear, logical, and goal-directed thought process. Id. During the session, Plaintiff "became increasingly frustrated," his wife noted "he was confused and ready to go," and Dr. Smith terminated the session. Id. Dr. Smith assessed generalized anxiety disorder, suggested anger management, and continued Plaintiff's medical leave because he was "unable to attend safely to [the] job." Tr. at 796.
On May 20, 2014, Plaintiff presented to Sudie Clem, LISW-CP ("Ms. Clem"), at Western Carolina, for therapy. Tr. at 805-06. Plaintiff presented with a depressed mood and affect, reported sleep disturbances, loss of energy, anhedonia, and suicidal ideation. Id. Plaintiff reported increased depression and anxiety attacks, and he did not "feel ready to return to work." Id. Ms. Clem assessed recurrent major depression, generalized anxiety disorder, and dysthymic disorder. Id.
On May 21, 2014, Dr. Smith completed an attending physician's statement of continued disability for Plaintiff's employer. Tr. at 746-47. Dr. Smith noted Plaintiff's attitude was guarded and suspicious, his speech was halted, his psychomotor activity was agitated, and his attention and concentration were impaired, but his memory was intact, his thought process was logical and coherent, and his insight was fair. Id. Dr. Smith opined Plaintiff was distracted, irritable, and had poor attention, such that he was unable to return to work at that time. Id.
On May 29, 2014, Plaintiff presented to Ware Shoals for prescription refills. Tr. at 364-69. Dr. Baker noted Plaintiff appeared depressed and his general appearance was abnormal. Id. Dr. Baker assessed benign essential hypertension, acute prostatitis, GERD, morbid obesity, fatigue, restless legs syndrome, lumbosacral disc degeneration, and renal or ureteral disease and modified Plaintiff's medications. Id.
On June 9, 2014, Plaintiff presented to Dr. Smith and reported he was doing "OK" and at baseline, but continued to have temper and anger outbursts. Tr. at 798-801. Plaintiff expressed concern "that if he returned to work he might hurt himself or someone else . . . due to him losing his temper." Tr. at 798. Plaintiff expressed he had difficulty paying the copay and had not been to therapy due to cost concerns, and Dr. Smith noted an indigent application was being processed. Id. Dr. Smith also noted Plaintiff had a depressed and unstable mood, hostility, frequent anger, and worsened energy, concentration, and enjoyment. Id. Dr. Smith observed Plaintiff was anxious, depressed, and irritable, but active and alert with normal eye contact. Id. He also observed Plaintiff's thought process was linear, but not concrete. Id. Dr. Smith assessed recurrent major depression, generalized anxiety disorder, and dysthymic disorder. Id.
On July 14, 2014, Plaintiff presented to Dr. Posta and reported no improvement after a shoulder injection. Tr. at 472. Dr. Posta assessed rotator cuff tear, AC joint arthritis, and biceps tendinitis in Plaintiff's right shoulder. Id. He also assessed hypertension, hypercholesterolemia, hypertriglyceridemia, depression, GERD, morbid obesity, and endocrine abnormality. Id. Dr. Posta noted Plaintiff would be a candidate for shoulder arthroscopy, but his endocrine problems needed to be resolved first. Id.
On July 15, 2014, Plaintiff presented to Dr. Smith for follow up and reported worsened mood, but denied thoughts of harm. Tr. at 802-04. Dr. Smith observed Plaintiff's mood and affect were depressed and he was irritable, but he had normal eye contact, was appropriately reactive, and pleasant, cooperative, and alert, with intact judgment and insight. Id. Plaintiff's thought process was logical, but not concrete. Id. Dr. Smith assessed recurrent major depression, generalized anxiety disorder, and dysthymic disorder. Id. Dr. Smith noted Plaintiff was scheduled to transition to a psychiatrist within his insurance plan in August. Id.
On July 16, 2014, a brain MRI reflected a mucous retention cyst in the left maxillary sinus, but was otherwise unremarkable. Tr. at 558.
On July 23, 2014, Plaintiff received a prescription for physical therapy to begin on August 11, 2014, after surgery on his right shoulder. Tr. at 407-11.
On August 7, 2014, Plaintiff presented to Monique H. Lentz, M.D. ("Dr. Lentz"), for an initial evaluation. Tr. at 489-93. Plaintiff reported he had suffered from depression since childhood due to various events and had a history of fighting in high school. Tr. at 489. Plaintiff had severe depression, he could not "let things go," he was easily angered, and he had suicidal thoughts most days. Id. He reported he previously enjoyed hunting and fishing, but not as much now. Id. He also reported he had increased anxiety and panic attacks, moderate insomnia, and decreased energy. Id. Plaintiff believed coworkers talked about him and laughed at him. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was fair, and his behavior was pleasant, cooperative, and calm. Tr. at 489-90. Dr. Lentz also noted Plaintiff had a logical and goal-directed thought process, normal attention, intact knowledge, and fair judgment and insight. Tr. at 490. However, Plaintiff's mood and affect were depressed. Id. Dr. Lentz diagnosed bipolar disorder with moderate depression, generalized anxiety disorder, and panic disorder and prescribed Depakote. Tr. at 491.
On August 11, 2014, Plaintiff presented to the Optimum Life Center and his wife reported that the surgery repaired his labrum and "cleaned up the rest of his shoulder." Tr. at 422. Plaintiff reported his pain ranged from 3/10 to 8/10. Id. Kelly Anderson, P.T. ("Ms. Anderson"), noted Plaintiff had a good prognosis, would benefit from physical therapy, and would be able to return to his prior level of physical function. Tr. at 423. Plaintiff attended various therapy sessions from August through October 2014. See Tr. at 412-61.
On August 18, 2014, Plaintiff presented to Ware Shoals due to elevated laboratory results, a migraine, and tremor. Tr. at 370-75, 379-85. Nurse Owens found Plaintiff's judgment and insight were normal, but his mood and affect were abnormal and flat. Tr. at 372. Nurse Owens assessed benign essential hypertension, convulsions, headache, tremors, fatigue, and morbid obesity. Tr. at 373. Nurse Owens ordered bloodwork, adjusted Plaintiff's medications, and referred him to neurology. Id.
On August 19, 2014, Plaintiff presented to Dr. Posta and reported shoulder soreness. Tr. at 471. Dr. Posta refilled Oxycodone, Ambien, and Voltaren and noted Plaintiff would continue with rehabilitation. Id.
On August 27, 2014, Plaintiff presented to Dr. Posta and reported worsened pain. Tr. at 469-70. Dr. Posta found Plaintiff's active forward elevation of his right shoulder was 0 to 60 degrees and he had global right shoulder pain. Id. A radiograph showed no evidence of fracture and adequate decompression and acromioplasty. Id. Dr. Posta administered an injection and provided Oxycodone and Voltaren for pain relief. Id.
On August 28, 2014, Plaintiff presented to Dr. Lentz and reported one panic attack that resulted in an outburst. Tr. at 485-88. Plaintiff also reported increased anxiety around people and that he was easily frustrated and confused. Id. Dr. Lentz noted Plaintiff was accompanied by his wife and he had a neat appearance and fair grooming. Id. Dr. Lentz also noted Plaintiff's behavior was pleasant, cooperative, and calm, with an "OK" mood and affect, his thought process was logical and goal-directed and his judgment and insight were fair. Id. Dr. Lentz adjusted Plaintiff's medications. Id.
On August 29, 2014, Plaintiff presented to Neurodiagnostics of the Piedmont Health Group ("Piedmont Health") for an electroencephalography ("EEG") due to convulsions and tremors. Tr. at 396. The awake EEG was normal, but the absence of epileptiform discharges did not rule out the diagnosis of an epileptic disorder. Id.
On September 10, 2014, Plaintiff presented to Dr. Posta. Tr. at 468. Dr. Posta noted Plaintiff was "doing much better" and would continue to rehabilitate his right shoulder, work on full motion and strength, and increase his activities. Id.
On September 22, 2014, Plaintiff presented to Piedmont Health for a follow up of his convulsions and headaches. Tr. at 400-02. Plaintiff reported his headaches were controlled with Depakote, he had modified his diet, and his convulsions had ceased. Id. Plaintiff also reported he believed his prior symptoms were due to anxiety or panic attacks. Tr. at 400. Anthony Holt, D.O. ("Dr. Holt"), found Plaintiff's neurological exam was normal, but he had a wide-based and ataxic gait. Tr. at 402. Dr. Holt assessed convulsions and intractable chronic migraine, ordered bloodwork, and noted Plaintiff "most likely" experienced psychogenic seizures. Id.
On September 29, 2014, Plaintiff presented to Dr. Lentz and reported increased mood swings, insomnia, nightmares, anxiety, and panic attacks. Tr. at 482. Plaintiff reported three panic attacks that lasted one to three hours and were triggered "when somebody sa[id] something" or while in a crowd. Id. Plaintiff also reported he had racing thoughts "all the time," tension, and an inability to relax, but decreased migraines. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual and his grooming was good. Id. Plaintiff's behavior was pleasant, cooperative, and calm, but his mood and affect were terrible. Id. Dr. Lentz also noted Plaintiff's thought process was logical and goal-directed, but he had racing thoughts and paranoia, as he thought people were talking about him, including his wife. Id. However, Plaintiff's judgment and insight were fair. Id. Dr. Lentz modified Plaintiff's medications. Tr. at 482-83; Tr. at 484 (providing lab results).
On October 10, 2014, Plaintiff presented to Optimum Life Center and reported his intermittent pain ranged from 1/10 to 2/10 and he was ready for discharge from physical therapy. Tr. at 456. Ms. Anderson noted Plaintiff's pain and disability index questionnaire was eight percent and Plaintiff was discharged "due to meeting his goals and making good progress with physical therapy along with having a final home program." Tr. at 460.
On October 20, 2014, Plaintiff presented to Dr. Posta for a follow up of his right shoulder after surgery and physical therapy. Tr. at 467. Dr. Posta found Plaintiff was an "alert pleasant gentleman ambulating without difficulty" and had mild, right shoulder pain with an active forward elevation of 0 to 170 degrees, passive elevation of 0 to 180 degrees, and external rotation of 50 degrees. Id. Dr. Posta noted Plaintiff would "rehab on his own" and assessed stable right shoulder post-arthroscopy, arthroscopic shoulder decompression ("ASD"), arthroscopic distal clavicle resection ("ADCR"), debridement of a SLAP tear, and post-op right shoulder sprain. Id.
On November 24, 2014, Plaintiff presented to Dr. Lentz and reported he felt tense. Tr. at 480. Plaintiff had increased insomnia, one panic attack, and stressful holidays, but decreased mood swings. Id. He reported Seroquel worked, but made him sleepy during the day. Id. Dr. Lentz found his appearance was neat and casual with good grooming. Id. Dr. Lentz noted Plaintiff's behavior was pleasant, cooperative, and calm, but his mood and affect were up and down. Id. Plaintiff had slightly decreased paranoia, no suicidal or homicidal thoughts, and fair judgment and insight. Id. Dr. Lentz modified Seroquel, but continued other medications. Id.
On December 1, 2014, Plaintiff presented to Dr. Posta and reported he was sore, particularly when he did overhead activity. Tr. at 466. Dr. Posta found Plaintiff was an "alert pleasant gentleman ambulating without difficulty" and his "active and passive forward elevation of the right shoulder [was] 0 to 180 degrees," with nontender joints, and 5/5 rotator cuff strength. Id. He prescribed Ultram, encouraged Plaintiff to do exercises, and believed "his symptoms [would] resolve with time and rehabilitation," with his progress to be assessed in six weeks. Id.
The record does not contain another follow-up appointment.
On December 2, 2014, Dr. Posta completed a work statement that provided Plaintiff was able to return to regular duty without physical restrictions. Tr. at 754.
On December 29, 2014, Plaintiff presented to Dr. Lentz. Tr. at 478-79. Plaintiff's wife reported she felt Plaintiff was improving, but he was occasionally "grumpy" in the evening. Id. Plaintiff reported no panic attacks, his sleep was good, he was calm, and he had increased his social interaction, with no big mood swings. Id. The "holidays were better," but there was "no travelling." Id. Dr. Lentz noted Plaintiff's appearance was neat and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's mood and affect were "OK," but his judgment and insight were fair, with no thoughts of suicide or homicide. Id. Dr. Lentz adjusted Seroquel, continued Plaintiff's other medications, and recommended a healthy diet and exercise. Id.
On January 6, 2015, Dr. Lentz completed a questionnaire for Disability Determination Services and stated she was a psychiatrist. Tr. at 496-97. Dr. Lentz noted Plaintiff's first visit was August 7, 2014, she saw him monthly, and his most recent visit was December 29, 2014. Tr. at 496. Dr. Lentz also noted Plaintiff was compliant, and his treatment was effective, as he had shown "slight improvement in some symptoms," but his condition was "chronic and full remission [was] not expected." Id. Dr. Lentz provided Plaintiff's current diagnoses as bipolar disorder, generalized anxiety disorder, and panic disorder. Id. Dr. Lentz noted she had prescribed Seroquel, Depakote, Klonopin, and Effexor for Plaintiff's conditions. Id. Dr. Lentz also noted Plaintiff's grooming was appropriate, he was oriented, his thought process was normal, he had average cognitive ability, and fair attention and memory, but his affect was slightly anxious, his mood was slightly depressed, and he was slightly paranoid. Tr. at 497. Dr. Lentz opined Plaintiff's abilities to complete basic ADLs and simple, routine tasks were adequate. Id. However, his abilities to relate to others and complete complex tasks were between poor and adequate. Id. Dr. Lentz explained Plaintiff had anxiety around people, except close family members, increased agoraphobia, and difficulty making decisions and being around people due to paranoia, panic attacks, and mood swings. Id. Dr. Lentz also explained Plaintiff could not complete tasks due to racing thoughts, fatigue, or insomnia. Id.
On January 28, 2015, Dale Van Slooten, M.D. ("Dr. Van Slooten"), a state agency physician, stated there was insufficient evidence in the file to complete a physical residual functional capacity ("RFC") assessment. Tr. at 98. On January 29, 2015, Xanthia Harkness, Ph.D. ("Dr. Harkness"), a state agency psychologist, stated there was insufficient evidence in the file to provide a psychiatric review technique ("PRT") assessment. Tr. at 99.
On March 16, 2015, Plaintiff presented to Ware Shoals for a checkup and medication refills. Tr. at 510-15. Plaintiff reported he no longer had a tremor, but he was under the care of nephrology due to his kidney function. Id. Plaintiff had a normal physical exam, but his mood and affect were abnormal and flat. Tr. at 512. Nurse Owens assessed benign essential hypertension, depression, GERD, and essential hypertriglyceridemia. Id.
On March 31, 2015, Plaintiff presented to Ware Shoals for elevated blood sugar. Tr. at 516-21. Plaintiff's physical and psychiatric examinations were normal. Tr. at 518. Nurse Owens assessed type two diabetes mellitus and diabetic neuropathy. Tr. at 519.
On April 14, 2015, Plaintiff presented to Greg Swanson, Ph.D. ("Dr. Swanson"), for an initial evaluation with his wife. Tr. at 719-27. Plaintiff reported bipolar disorder, stress, anxiety, and uncontrollable anger that had caused other co-workers to become afraid of him. Id. Plaintiff also reported he had suffered from these issues his entire life, but they had worsened. Id. Plaintiff stated his issues made it difficult to cope with people or make correct decisions and made him want to hurt himself and others. Id. Through his responses to a questionnaire, Plaintiff reported he suffered symptoms, such as difficulty concentrating, from a variety of conditions, including depression, mania, psychosis, post-traumatic stress disorder ("PTSD"), anxiety, and intermittent explosions. Id. Dr. Swanson noted Plaintiff's GAF score was 45. Id. Dr. Swanson developed a plan that included individual therapy with him and coordination with Dr. Lentz to decrease Plaintiff's panic attacks, anxiety, anger, and depression. Id.
On April 22, 2015, Nurse Owens completed a questionnaire for the Disability Determination Services regarding Plaintiff. Tr. at 522. Nurse Owens noted she had treated Plaintiff the prior month, his mental diagnosis was depression, he was prescribed Bupropion, the medications helped his condition, and she had not recommended psychiatric care. Id. Nurse Owens opined Plaintiff was oriented to time, had an intact thought process, appropriate thought content, and good attention and memory, but flat mood and affect. Id. Nurse Owens also opined Plaintiff had good abilities to complete basic ADLs, relate to others, and complete simple, routine, or complex tasks. Id.
On April 30, 2015, Plaintiff presented to Dr. Swanson and reported suicidal thoughts and that little things made him angry. Tr. at 718. Plaintiff's GAF score was 45. Id. His goals were to decrease depression and anxiety, express anger more appropriately, cope with bipolar disorder, and decrease panic attacks. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
On May 5, 2015, Dr. Lentz completed a handwritten statement that provided, "[Plaintiff] is being treated by me for psychiatric illness. He is unable to work and is totally [and] permanently disabled. He has been denied disability from work [and] is in the appeal process." Tr. at 526.
On May 13, 2015, Craig Horn, Ph.D. ("Dr. Horn"), a state agency psychologist, completed a PRT assessment upon reconsideration and opined Plaintiff had mild restrictions of ADLs, moderate difficulties in maintaining social functioning and concentration, persistence, or pace, and one or two repeated episodes of decompensation of an extended duration. Tr. at 109. Dr. Horn opined Plaintiff's mental impairments were severe, but would not preclude him from performing simple, unskilled work. Id. Dr. Horn completed a mental RFC assessment and found Plaintiff was moderately limited in his abilities to understand, remember, and carry out detailed instructions, maintain concentration for extended periods, or interact with the public. Tr. at 112-14.
Also, on May 13, 2015, Matthew Fox, M.D. ("Dr. Fox"), a state agency physician completed a physical RFC assessment upon reconsideration and opined Plaintiff was capable of performing a range of medium work, but must avoid concentrated exposure to hazards such as machinery. Tr. at 111-12.
On May 24, 2015, Plaintiff presented to Self Regional Healthcare ("Self Regional") due to shortness of breath, weakness, confusion, and increasing chest tightness for five days. Tr. at 559-84. Plaintiff reported worsened depression and anxiety over the prior week, despite psychotherapy. Tr. at 563. Katherine G. Johnson, M.D. ("Dr. Johnson"), noted Plaintiff had been previously admitted to BHU. Id. Plaintiff reported he had been unable to work due to his depression for one and a half years, but still fished and hunted, although he found less pleasure in these activities. Tr. at 564. Plaintiff also reported depression, anxiety, and feeling constantly fatigued, but denied pain. Id. Dr. Johnson found Plaintiff was alert with good insight and not acutely anxious or psychotic, but had a slightly flattened affect and was sad. Tr. at 565. Plaintiff's physical exam was unremarkable. Id. Dr. Johnson assessed chest tightness and palpitations, well-controlled hypertension, sleep apnea, hyperlipidemia, GERD, diabetes, and benign prostatic hypertrophy. Tr. at 565-66. Dr. Johnson also assessed depression, bipolar disorder, anxiety, and suicidal ideation. Id. She noted:
It is unclear whether BHU is an acronym used for Behavioral Health, where Plaintiff was admitted in February 2014, or another entity.
I think this is the likely etiology of his discomfort. This appears to be worsening despite his therapy of Effexor, Klonopin, Seroquel, and Depakote. Given that he does state that he is having some suicidal ideation that is worsening, I think a psychiatric consult in the morning would be very appropriate. I think he will likely benefit from some time in the BHU. . . . He is clearly refractory to treatment, and I think continued follow up with a psychiatrist in Augusta is prudent. . . . I will discuss this patient with BHU and psychiatric team in the morning. He may benefit from BHU once his cardiac assessment has been completed.Tr. at 566. Plaintiff was admitted to the hospital. Id. Plaintiff had a normal ECG, and a chest x-ray reflected no acute cardiopulmonary process. Tr. at 582, 584.
On May 27, 2015, Plaintiff presented to Ware Shoals for a follow up after his hospital visit. Tr. at 617-22. Plaintiff reported increased heart rate, chest pain, palpitations, and shortness of breath, but no other issues. Tr. at 617. Nurse Owens found a normal physical exam and normal judgment, insight, and memory, but Plaintiff's mood and affect were abnormal and flat. Tr. at 619-20. Nurse Owens assessed palpitations, chest pain, and shortness of breath, ordered an echocardiogram, stress test, and halter monitor, and modified his medications. Tr. at 620.
On June 3, 2015, Plaintiff presented to Dr. Lentz. Tr. at 679. Plaintiff was accompanied by his wife, who felt he was "mean" while taking Depakote. Id. Plaintiff reported increased mood swings and anxiety, and he was easily frustrated and angered. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was fair, and his behavior was pleasant, cooperative, and calm. Id. Dr. Lentz also noted Plaintiff's mood and affect were "up [and] down" and he had worsened paranoia. Id. Plaintiff's thought process was logical and goal-directed, and his judgment and insight were fair. Id. Dr. Lentz adjusted Plaintiff's medications. Tr. at 680.
On June 4, 2015, Plaintiff presented to Self Regional for chest pain and dyspnea upon referral by Nurse Owens. Tr. at 585-99. Plaintiff underwent a stress test that reflected a normal ECG, fair exercise tolerance, and normotensive response to exercise. Tr. at 588-89. Plaintiff wore a halter monitor that reflected an overall normal study, no malignant arrhythmias, and no evidence of ischemia. Tr. at 590-95. A transthoracic echocardiography report ("TTE") concluded the left ventricular size was normal with mild concentric hypertrophy and normal systolic function, with an estimated ejection fraction of 65%, mild diastolic dysfunction, and a mildly-dilated left atrial. Tr. at 596.
On June 5, 2015, Plaintiff and his wife presented to Dr. Swanson. Tr. at 717. Plaintiff's wife reported his temper, anger, and anxiety had worsened, he did not wish to deal with anyone or anything, and his mood shifted from nice to mean within minutes. Id. Plaintiff reported, after a "rampage," he would get a headache, his mind would go blank, and he would sleep for days. Id. Plaintiff also reported he was hospitalized ten years prior and the prior February for mental health issues, but did not feel they helped at all and he thought it would be better for everyone if he was no longer around. Id. Dr. Swanson suggested physical activity to "burn off tension." Id. Plaintiff's GAF score was 40. Id. His goals were to decrease depression and anxiety, express anger more appropriately, cope with bipolar disorder, and decrease anger and panic attacks. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
On June 23, 2015, Plaintiff presented to Dr. Swanson and his wife accompanied him. Tr. at 716. Plaintiff reported he had suicidal thoughts since childhood due to his family's reputation. Id. Plaintiff also suffered from PTSD due to his involvement with a rescue squad during his teenage years. Id. Plaintiff's GAF score was 41. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
On July 13, 2015, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 681. Plaintiff's wife reported Plaintiff was "not as mean" since his medication was adjusted. Id. Plaintiff reported his disability through work was approved for three more months, but he had a decreased mood and increased agoraphobia. Id. Dr. Lentz noted Plaintiff's appearance was neat, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Dr. Lentz also noted Plaintiff's thought process was logical and goal-directed and his judgment and insight were fair, but his mood and affect were "OK." Id. Dr. Lentz adjusted Plaintiff's medications. Tr. at 682.
On August 6, 2015, Plaintiff presented to Ware Shoals and reported high sugar levels. Tr. at 623-28. Nurse Owens found overall normal physical and psychiatric exams. Tr. at 625-26. Nurse Owens assessed diabetes and hypertension, prescribed Glipizide, and recommended diet and exercise. Id.
On August 19, 2015, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 683. Plaintiff reported increased anxiety, insomnia, and agoraphobia. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's thought process was logical and goal-directed and his judgment and insight were fair, but his mood and affect were "alright." Id. Dr. Lentz adjusted Plaintiff's medications. Tr. at 684.
On September 22, 2015, Plaintiff presented to Dr. Swanson. Tr. at 714. Plaintiff reported anxiety attacks in stores that caused him to leave in a hurry and road rage as he attempted to drive home quickly. Id. Plaintiff stated the anxiety attacks depended upon the amount of people, whether kids were present, or the lines were long. Id. Plaintiff's GAF score was 41. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Also on September 22, 2015, Plaintiff presented to Dr. Lentz and reported increased panic attacks, insomnia, mood swings, and anxiousness. Tr. at 685. Plaintiff stated some days he had decreased anxiety and an increased mood, but he was mostly anxious and easily overwhelmed and frustrated. Id. Dr. Lentz noted Plaintiff's appearance was neat, his grooming was fair, and his behavior was pleasant, cooperative, and calm. Id. Dr. Lentz also noted Plaintiff's thought process was logical and goal-directed, he had no suicidal or homicidal thoughts, and his judgment and insight were fair, but his mood and affect were "alright or not so." Id. Dr. Lentz adjusted Plaintiff's medications. Tr. at 686.
On October 27, 2015, Plaintiff presented to Dr. Swanson and reported things had "been pretty rough," as he had a confrontation with his son, resulting in Plaintiff punching a mirror off a car door and his wife stepping between them. Tr. at 713. Plaintiff also had a confrontation with a friend. Id. Plaintiff expressed he would be relieved if he could just fight those who angered him. Id. Plaintiff's GAF score was 41. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Also on October 27, 2015, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 687. Plaintiff reported he had increased anxiety and was easily angered, such that he had an argument with his wife, shoved and hit her, and "almost" had a physical fight with a friend. Id. He reported increased mood swings and he could not "let things go." Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm at his appointment. Id. Plaintiff's thought process was logical and goal-directed with no suicidal or homicidal thoughts and his judgment and insight were fair, but his thought content or perceptions had increased paranoia and his mood and affect were "not good." Id. Dr. Lentz adjusted Plaintiff's medications. Tr. at 688.
On November 9, 2015, Plaintiff presented to Ware Shoals for a diabetic check-up. Tr. at 629-35. Plaintiff had a normal physical exam, and Nurse Owens noted he was doing well with his diabetic goals. Id. Nurse Owens assessed hypertension, diabetes, and hypertriglyceridemia and adjusted Plaintiff's medications. Id.
On November 30, 2015, Plaintiff presented to Dr. Swanson. Tr. at 712. Dr. Swanson noted Plaintiff's mood was more positive, but he discussed his difficult childhood. Id. Plaintiff's GAF score was 42. Id. His goals were to decrease depression and anxiety, express anger more appropriately, and cope with bipolar disorder. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Also on November 30, 2015, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 689. Plaintiff reported his mood and energy had increased, he had not argued with his wife as much, and he laughed occasionally with her. Id. Plaintiff also reported increased anxiety when outside his house, but he was able to hunt "some." Id. Dr. Lentz noted Plaintiff's appearance was neat, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Dr. Lentz also noted Plaintiff's mood and affect were "a little better." Id. Plaintiff's thought process was logical and goal-directed with no suicidal or homicidal ideations, his judgment and insight were fair, and his fund of knowledge was intact. Id. Dr. Lentz continued Plaintiff's medications. Tr. at 690.
On December 31, 2015, Plaintiff presented to Ware Shoals for a physical examination. Tr. at 636-48. Nurse Owens noted normal physical and psychiatric exams overall, but assessed lumbar pain and ordered an x-ray. Tr. at 638-40, 645-47.
On January 5, 2016, a lumbar spine x-ray reflected no acute fracture or spondylolisthesis. Tr. at 600-01, 675.
On January 13, 2016, Plaintiff presented to Dr. Swanson and his wife accompanied him. Tr. at 711. Plaintiff expressed frustration with his son and his wife. Id. Plaintiff's GAF score was 43. Id. His goals were to decrease depression and anxiety, express anger more appropriately, and cope with bipolar disorder. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
On January 13, 2016, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 691-92. Plaintiff reported increased mood swings and he was upset because his commercial driver's license expired. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's mood and affect were "fair to middling" and his thought process was logical and goal-directed with fair judgment and insight. Id. Dr. Lentz continued Plaintiff's medications and prescribed Seroquel. Id.
On March 10, 2016, Plaintiff presented to Ware Shoals for a diabetic check-up and medication refills. Tr. at 649-55. Kristi Ford-Scales, M.D. ("Dr. Ford-Scales"), noted Plaintiff was "more depressed than usual," but he saw a psychiatrist regularly. Tr. at 649. Plaintiff reported lower back pain and he desired an MRI, as an x-ray reflected normal results. Id. Dr. Ford-Scales noted an overall normal physical exam and assessed stable hypertension, improved diabetes, and essential hypertriglyceridemia, but she noted Plaintiff's back pain sounded musculoskeletal and he declined physical therapy. Tr. at 652.
On March 11, 2016, Plaintiff presented to Dr. Swanson. Tr. at 710. Plaintiff reported his relationship with his son had improved and "things [had] been 'fair to middling,'" but he was frustrated with his wife, who was "always on [him] about helping [to] clean[]." Id. Id. Plaintiff's GAF score was 44. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Plaintiff asserts in his brief that the ALJ misinterpreted this treatment note and it is his wife who watches their nieces and drives them to school, not him. [ECF No. 16 at 33], Tr. at 710.
Also on March 11, 2016, Plaintiff presented to Dr. Lentz and reported his nerves made him "edgy" during interactions in stores, he had increased mood swings, and he felt guilty about "not being able to work." Tr. at 693-94. Plaintiff also reported occasional panic attacks and "anger spells" that had decreased for a while, but recently increased. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Dr. Lentz also noted Plaintiff's thought process was logical and goal-directed and his judgment and insight were fair, but his mood and affect were "not great." Id. Dr. Lentz increased Valium and continued Plaintiff's other medications. Id.
On April 12, 2016, Plaintiff presented to Dr. Swanson and his wife accompanied him. Tr. at 709. Plaintiff reported he was training to be an emergency medical responder. Id. Plaintiff also reported, after his prior appointment, his sister called and threatened to tell everyone that she had been molested when they were children. Id. Plaintiff became suicidal and grabbed his gun, but his wife contacted his friends at the fire department and they were able to calm him down. Id. Dr. Swanson noted Plaintiff did not call him or Dr. Lentz to report or discuss the incident. Id. He also noted Plaintiff continued to sleep with a gun beside his bed, but he had dogs outside and inside his house, such that an intruder should not be an issue. Id. Plaintiff's GAF score was 40. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). DSM-IV-TR.
Also on April 12, 2016, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 695-96. Plaintiff reported a decreased mood, increased anxiety, feelings of guilt, and he almost committed suicide. Id. Dr. Lentz noted Plaintiff's appearance was neat, his grooming was good, and his behavior was fairly pleasant, cooperative, and calm. Id. Dr. Lentz also noted Plaintiff's thought process was logical and goal-directed with fair judgment and insight, but his mood and affect were down and he contracted for safety. Id. Dr. Lentz instructed Plaintiff to contact her if his symptoms worsened, and she increased Effexor. Id.
On May 24, 2016, Plaintiff presented to Self Regional for high blood pressure and a headache since falling the prior week. Tr. at 607-16, 611. A head computed tomography ("CT") scan reflected no evidence of acute intracranial abnormality. Tr. at 616. Richard Brooksbank, M.D. ("Dr. Brooksbank"), diagnosed post-traumatic headache. Tr. at 614-15.
Also on May 24, 2016, Plaintiff presented to Dr. Swanson and reported he had passed training to be an emergency medical responder and had a good month overall. Tr. at 708. Plaintiff's GAF score was 41. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Plaintiff asserts in his brief that his daughter and wife enjoyed ranger exercises, not him, but Dr. Swanson's treatment note is unclear. [ECF No. 16 at 28], Tr. at 708.
In addition, on May 24, 2016, Plaintiff presented to Dr. Lentz, and his wife accompanied him. Tr. at 697-98. Plaintiff and his wife reported decreased anger, panic attacks, and manic symptoms, as well as increased mood. Id. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's mood and affect were "about average for [him]" with a logical and goal-directed thought process, fair judgment and insight, and intact fund of knowledge, but he had thoughts of dying and contracted for safety. Id. Dr. Lentz continued Plaintiff's medications. Id.
On June 22, 2016, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 699-700. Plaintiff reported he had "a few rough spots," as he was anxious, angry, and snappy, with increased agoraphobia. Id. Dr. Lentz noted Plaintiff's appearance was neat, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's mood and affect were "alright," his thought process was logical and goal-directed, and his judgment and insight were fair. Id. Dr. Lentz assessed mixed bipolar type I, panic disorder, and agoraphobia. Id. Dr. Lentz increased Effexor and continued Plaintiff's other medications. Id.
Dr. Lentz's notes are handwritten and, at times, illegible. In addition, one treatment note is cut off in the record, but neither party has argued this poses an issue. See Tr. at 699.
On June 23, 2016, Plaintiff presented to Ware Shoals for a check up and medication refills. Tr. at 662-68. Dr. Ford-Scales noted Plaintiff's foot symptoms were stable and his diarrhea could be related to medication. Tr. at 665. Dr. Ford-Scales assessed stable hypertension, diabetes, and colon polyps, ordered bloodwork, and referred Plaintiff for a colonoscopy. Tr. at 665-66, 678.
On July 22, 2016, Plaintiff presented to Ware Shoals for a follow up. Tr. at 669-74. Plaintiff's physical and psychiatric exams were normal. Tr. at 672. Danielle Towns, M.D. ("Dr. Towns"), assessed hyperlipidemia and abnormal laboratory test results. Id.
On July 26, 2016, Plaintiff presented to Dr. Swanson and reported updates regarding the fire department. Tr. at 707. Plaintiff's GAF score was 42. Id. His goals were to decrease depression and anxiety, express anger more appropriately, and cope with bipolar disorder. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Also on July 26, 2016, Plaintiff presented to Dr. Lentz. Tr. at 701-03, 741-42. Plaintiff reported decreased mood swings and only a few panic attacks, but he had argued with his wife and had increased fatigue and agoraphobia. Id. Dr. Lentz observed Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's thought process was logical and goal-directed, but his mood and affect were "alright" and he had occasional thoughts of dying and contracted for safety. Id. Plaintiff's judgment and insight were fair and his fund of knowledge was intact. Id. Dr. Lentz continued Plaintiff's medications and noted she would confer with Dr. Swanson. Id.
On September 6, 2016, Plaintiff presented to Dr. Lentz and his wife accompanied him. Tr. at 739-40. Plaintiff reported one major panic attack at a gas station the prior week and increased anxiety, but decreased mood swings. Id. Dr. Lentz observed Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's mood and affect were "alright," his thought process was logical and goal-directed, and his judgment and insight were fair, with an intact fund of knowledge. Id. Dr. Lentz continued Plaintiff's medications. Id.
On September 14, 2016, Plaintiff presented to David Bridges, M.D. ("Dr. Bridges"), at Village Family Practice and reported left shoulder pain for one week. Tr. at 761-62. Dr. Bridges noted Plaintiff's shoulder did not bother him until "extreme internal rotation," and Dr. Bridges hoped steroids and gentle stretching would heal it without the need for x-rays or MRIs. Id. Dr. Bridges instructed Plaintiff to return if his pain was not relieved. Id.; see Tr. at 763-65 (providing various medication lists and laboratory results).
On October 7, 2016, a left shoulder x-ray reflected no acute fracture or dislocation. Tr. at 766-67. A left shoulder MRI showed rim rent tears of both the anterior infraspinatus and anterior supraspinatus at the distal footprint, bone marrow contusion of the distal clavicle, AC joint injury, tearing of the posterior or superior labrum, and mild subacromial bursitis. Tr. at 768-69. Plaintiff was referred to an orthopedist. Id.
On October 10, 2016, Plaintiff presented to Dr. Swanson and reported he had no energy and suffered from depression and anxiety. Tr. at 705. Plaintiff reported he had only hunted three to four times since the season started. Id. Plaintiff also reported he was a first responder for an accident involving a five-year-old girl who died on the way to the hospital and her image haunted him. Id. Plaintiff's GAF score was 42. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Also on October 10, 2016, Plaintiff presented to Dr. Lentz and reported increased agoraphobia and anhedonia and decreased mood. Tr. at 737-38. Dr. Lentz noted Plaintiff's appearance was neat and casual, his grooming was good, and his behavior was pleasant, cooperative, and calm. Id. Plaintiff's thought process was logical and goal-directed, his judgment and insight were fair, and his fund of knowledge was intact, but his mood and affect were depressed. Id. Dr. Lentz increased Effexor and continued Plaintiff's other medications. Id.
On November 17, 2016, Plaintiff presented to Dr. Swanson, who noted Plaintiff seemed worried, but not overwhelmed, and he was "aware of things that [could] be done" for his situation. Tr. at 704. Plaintiff's GAF score was 42. Id. His goals were to decrease depression and anxiety, express anger more appropriately, and cope with bipolar disorder. Id. Dr. Swanson continued therapy and the medications prescribed by Dr. Lentz. Id.
Also on November 17, 2016, Plaintiff presented to Dr. Lentz and reported increased anxiety, racing thoughts, insomnia, and anhedonia, but decreased manic symptoms. Tr. at 735-36. Dr. Lentz observed Plaintiff's appearance was neat, his grooming was good, and his behavior was pleasant and calm. Id. Plaintiff's thought process was logical and goal-directed and his judgment and insight were fair, but his mood and affect were depressed and he had racing thoughts. Id. Dr. Lentz continued Plaintiff's medications and noted he was waiting on a disability hearing. Id.
On November 30, 2016, Plaintiff presented to Dr. Bridges for a follow up of his diabetes and hypertension. Tr. at 757-60. Dr. Bridges noted Plaintiff's hypertension was well controlled, but provided Januvia to reduce his A1c from 8 to 7%. Id.
On December 30, 2016, Plaintiff presented for a follow up of his diabetes and hypertension. Tr. at 755-56. Plaintiff admitted he did not eat properly over the holidays, but Januvia had helped decrease his appetite and he lost weight. Tr. at 756. Dr. Bridges increased Januvia and noted Plaintiff would contact a doctor regarding his shoulder pain because prior injections from another orthopedist had not provided relief. Id.
On February 16, 2017, Plaintiff presented to Dr. Lentz and reported increased insomnia and anxiety and decreased mood, energy, and concentration. Tr. at 733-34. Dr. Lentz observed Plaintiff's appearance was neat and casual, his grooming was fair, and his behavior was pleasant, cooperative, and calm, but his mood and affect were "pretty bad." Id. Plaintiff's thought process was logical and goal-directed, but he had occasional thoughts of dying, passive thoughts of suicide, and contracted for safety. Id. Plaintiff's judgment and insight were fair and his fund of knowledge was intact. Id. Dr. Lentz noted Plaintiff's diagnoses included bipolar disorder, moderate-to-severe depression, panic disorder, and agoraphobia. Id. Dr. Lentz adjusted Plaintiff's medications. Id.
Also on February 16, 2017, Dr. Swanson issued a medical source statement regarding Plaintiff. Tr. at 728-30. Dr. Swanson opined Plaintiff could constantly follow work rules; occasionally deal with the public, use judgment, interact with supervisors, function independently, and maintain attention or concentration; rarely relate to co-workers and never deal with work stresses; understand, remember, and carry out simple job instructions constantly and detailed or complex instructions frequently; and occasionally demonstrate reliability, but rarely maintain his personal appearance, behave in an emotionally stable manner, or relate predictably in social situations. Id. Dr. Swanson noted Plaintiff was diagnosed with bipolar, panic, generalized anxiety, and intermittent explosive disorders and these diagnoses made him vulnerable to stress and more likely to behave erratically. Id. Dr. Swanson specified Plaintiff's issue was "vulnerability to stress, not [a] cognitive ability." Tr. at 729. Dr. Swanson noted Plaintiff could become extremely angry and behave in an explosive manner and he would need to exceed the usual number of breaks in an eight-hour workday to calm down and miss more than four workdays per month. Id. Dr. Swanson opined Plaintiff's impairments would remain into the indefinite future, he was not a malingerer, and his psychological impairments affected his behavior. Tr. at 730.
On March 6, 2017, Dr. Lentz completed a medical source statement regarding Plaintiff. Tr. at 743-45. She opined Plaintiff could constantly follow work rules; frequently use judgment; occasionally relate to co-workers, interact with supervisors, function independently, and maintain concentration; rarely deal with the public and work stresses; understand, remember, and carry out simple job instructions frequently, detailed jobs occasionally, and complex jobs rarely; and occasionally maintain his personal appearance, behave in an emotionally-stable manner, or relate predictably in social situations and rarely demonstrate reliability. Id. Dr. Lentz noted Plaintiff became easily irritated, frustrated, anxious, and tearful, had decreased concentration, energy, and motivation, had difficulty with interpersonal interactions, was hypersensitive to criticism, and was easily overwhelmed. Id. In addition, Plaintiff's potential cognitive ability was slowed from medications. Id. Dr. Lentz also noted Plaintiff suffered from panic attacks and agoraphobia. Id. Dr. Lentz stated Plaintiff's mental impairments would require him to exceed the usual number of breaks and interfere with his ability complete an eight-hour workday or cause him to miss more than four workdays per month. Id. Dr. Lentz opined Plaintiff's impairments had lasted or would last twelve months, he was not a malingerer, and he had a chronic, persistent, psychiatric illness, limited response to treatment, potential cognitive slowing, and limited response to multiple psychiatric medications. Id. Dr. Lentz concluded Plaintiff could not work in any occupation, but could manage benefits in his own best interest. Id.
b. Evidence Submitted to the Appeals Council
On October 24, 2016, Plaintiff presented to John Cathcart, III, M.D. ("Dr. Cathcart"), at Orthopaedic Associates of the Lakelands, due to left shoulder pain caused by using a limb cutter during the prior month. Tr. at 76-85. Plaintiff reported the pain woke him up at night and was caused by certain movements, but acknowledged it had improved. Tr. at 76. Dr. Carthcart noted Plaintiff was able remove his shirt without complications, but had a positive impingement. Tr. at 79. Dr. Cathcart reviewed an MRI and noted Plaintiff had changes consistent with AC arthritis and osteolysis of his clavicle with footprint changes along his rotator cuff insertion, but not a full-thickness tear. Id. Dr. Cathcart stated no diagnosis was found and his assessment showed Plaintiff's left shoulder was improving. Id. Dr. Cathcart noted Plaintiff's exam was consistent with marked AC arthritis, but he recommended a large joint arthrocentesis injection that he thought would "dramatically improve" Plaintiff's pain. Tr. at 79-80.
On May 15, 2017, Plaintiff presented to Dr. Cathcart with complaints of left shoulder pain that started one month prior due having fallen off a trailer in February 2017. Tr. at 86-91. Dr. Cathcart noted he evaluated Plaintiff in October 2016, but he had not seen him since. Tr. at 86. At that time, Dr. Cathcart had recommended therapy, but Plaintiff did not have insurance and did not follow up after the prior injection had only provided relief for one day. Id. Dr. Cathcart conducted a physical exam that revealed painful ROM, a positive Spurling's test, and extreme tenderness in his left shoulder, but he was unable to obtain results for other tests. Tr. at 89. He reviewed Plaintiff's diagnostic imaging results and opined Plaintiff's pain was "out of proportion." Tr. at 90. Dr. Carthcart noted:
I explained [to Plaintiff] that this MRI shows that he does have reasons to have pain however I think this is treatable with injection[s] and physical therapy. He is very unhappy with this description [and] he states that he has to have surgery[.] [H]is pain is out of proportion and [he] is unhappy with me. I am convinced that we do not have a good relationship and he will not listen to advice I have to give him and I think he needs to follow-up with a different physician. . . .Tr. at 90.
On June 5, 2017, Plaintiff presented to the Carolina Orthopaedic Center for evaluation of left shoulder pain. Tr. at 37-38. Dr. Posta evaluated Plaintiff, reviewed his history, radiographs, and MRIs, and performed an exam. Id. His impression included a left shoulder rotator cuff tear, SLAP tear, bicipital strain, and AC joint arthritis. Id. Dr. Posta noted:
[Plaintiff] is no better. His injury is almost 9 months [old] and his pain is worsening. At this point, given his age, activity level and pathology, and his radiographic studies, I do believe he has exhausted nonoperative modalities. I believe he would be a candidate for arthroscopy of the left shoulder . . . .Tr. at 38.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on April 4, 2017, Plaintiff testified he was 45 years old and lived in a double-wide mobile home with his wife. Tr. at 48. He said he was 6' tall and 355 pounds, but his normal weight was 330 pounds, with the additional weight due to a lack of exercise. Tr. at 49. He stated he completed high school through an exit exam under resource teachers, but he could read and write very little, maybe at a sixth-grade level. Tr. at 49-50. He said he could not spell at all, but could add and subtract a little bit. Tr. at 50. Plaintiff said he was right-handed, had a driver's license, could drive a little bit, and owned a vehicle, but his wife drove him most of the time, including to the hearing. Id. He said he had never been to jail and claimed unemployment once or twice in 2012. Tr. at 50-51. He did not recall ever having filed for worker's compensation. Tr. at 51. Plaintiff last worked at Vulcan Materials as a heavy equipment operator and welder. Id. He said he obtained a journeyman's welder certificate from Piedmont Tech. Id. He operated heavy equipment 75% and did welding 25% of the time while working. Id. He testified he stopped working due to a mental break down and had not looked for work since he left Vulcan Materials, noting Dr. Lentz would not sign off on his working. Id.
The transcript misspells Dr. Lentz's name as Lintz. Compare Tr. at 51, with Tr. at 698.
He stated he had uncontrolled diabetes and mostly-controlled high blood pressure. Tr. at 53-54. He wore a sling on his left shoulder as a result of having torn his labrum in September 2016. Tr. at 54. He testified injections had not worked and he lacked insurance to have surgery. Id. He testified he was in pain every day, notably when he moved side-to-side. Tr. at 55. Plaintiff said he could stand for 15 minutes before his back hurt as a result of a wedged disc he suffered 20 years prior. Id. He said he could sit for 30-40 minutes and walk for 15 minutes. Tr. at 56. He thought he could lift 50 pounds with his right arm and 5 pounds with his left. Id. He denied using a walker or cane. Id. He said he was able to squat and bend over, but had trouble with his right knee, on which he wore a brace. Tr. at 56-57. He stated his hands would cramp up if he turned wrenches or used a hammer for long periods. Tr. at 57. Since he put on extra weight, he experienced trouble breathing, but did not use an inhaler. Id.
Plaintiff testified he owned three lap dogs that his wife took care of. Id. He stated he cooked once or twice a month. Id. Plaintiff said he was able to bathe and dress on his own, did very little yard work or laundry, and did not clean the house. Tr. at 58. He stated he would usually sit in the car waiting for his wife to shop, or he would shop for 20 minutes or so. Id. He denied socializing with family or friends and said he had a cell phone with internet capability. Tr. at 58-59. He said he had not been able to attend church since he went to the hospital. Tr. at 59. He stated he ate out twice a month, did not use a computer, and did not have a Facebook account. Id.
Plaintiff stated he saw a psychiatrist and psychologist monthly, but only saw a doctor regarding his diabetes. Tr. at 59-60. He reported panic attacks and anxiety and his medications made him drowsy and slowed his reflexes. Tr. at 60. He denied using alcohol or non-prescribed drugs. Tr. at 61. He said he spent his days watching movies and mostly sleeping with a C-PAP machine. Id. He said he would fall asleep within 30 minutes of watching television. Tr. at 64.
In response to his counsel's questioning, Plaintiff stated he had been diagnosed with PTSD due to childhood sexual abuse. Tr. at 61-62. He reported sleeping 15 hours a day and having panic attacks two to three times per week, usually when he was around people. Tr. at 63. Plaintiff testified he did not think he could work due to his mental status, including daily suicidal and homicidal thoughts, anxiety, and the drowsiness his medicine caused. Tr. at 52-53, 60-61, 64. He said he had problems with his focus and concentration, worsened by anxiety. Tr. at 64.
Plaintiff reported he switched treatment from Western Carolina to Comprehensive Psychiatric Services with Dr. Swanson and Dr. Lentz, as it was covered by his insurance. Tr. at 65.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Dr. Robert Brabham, Sr., reviewed the record and testified at the hearing. Tr. at 65-72. The VE categorized Plaintiff's PRW as a combination welder as medium work, but heavy as performed, with specific vocational preparation ("SVP") of 6, Dictionary of Occupational Titles ("DOT") No. 819.384-010; as a heavy equipment operator, medium work, with SVP of 6, DOT No. 859.683-010; and as a dump truck driver, medium work, with SVP of 2, DOT No. 902.683-010. Tr. at 66-67.
The transcript spells the VE's name as Branham, but his resume reflects Brabham. Compare Tr. at 65, with Tr. at 305.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift up to 50 pounds occasionally; lift and carry up to 25 pounds frequently in medium work; was limited to frequent use of moving machinery and exposure to unprotected heights; limited to simple, routine, and repetitive tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday; and with only occasional interaction with the public. Tr. at 68. The ALJ asked whether there were any jobs in the economy that the hypothetical person could perform. Id. The VE testified the individual could not perform Plaintiff's PRW. Tr. at 68-69. However, the VE identified assembler and fabricate jobs with approximately 600,000 positions, for example as a metal furniture assembler, medium work, SVP of 2, DOT No. 709.684-014. Tr. at 69. The VE also identified the position of a packer and packager, medium work, SVP of 2, DOT No. 920.587-018, with 120,000 available positions; and as a simple machine tender, medium work, SVP of 2, DOT No. 616.685-058, with 160,000 available positions. Id.
The VE provided the job title as metal-to-metal furnisher, but the DOT reflects this position as metal furniture assembler and the ALJ correctly noted the position's description as an assembler. Compare Tr. at 69, with 1991 WL 679107 and Tr. at 28.
The ALJ provided a second hypothetical that modified the first to occasional climbing of ladders, ropes, or scaffolds; frequent climbing ramps or stairs; frequent use of moving machinery and occasional exposure to unprotected heights; simple, routine, and repetitive tasks performed in a work environment free of fast-paced production requirements involving only simple work-related decisions, with few, if any, work place changes; capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting; perform simple tasks for a two hour block of time with normal rest breaks during an eight-hour work day; and only occasional interaction with the public. Tr. at 70-71. The VE responded that the modifications would not eliminate any of the positions identified in response to the first hypothetical. Tr. at 71.
There appears to be a mistake in the transcript that omits the word "free" from the hypothetical, but the word appears in the RFC provided by the ALJ and Plaintiff has not argued this error. Compare Tr. at 70, with Tr. at 21.
The ALJ provided a third hypothetical that modified the second to included additional limitations for one who, due to severe mental impairments would be off task 20% or more of the workday and would be absent three or more workdays per month. Tr. at 71-72. The VE responded the modifications would eliminate all employment. Tr. at 72.
Plaintiff volunteered that he took four Valiums a day, which precluded operating any equipment or being around any machinery. Tr. at 73-74.
2. The ALJ's Findings
In his decision dated July 13, 2017, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since February 26, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: depressive disorder, anxiety disorder, bipolar disorder, posttraumatic stress disorder, and obesity (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the claimant [can] lift and carry up to 50 pounds occasionally, and lift and carry up to 25 pounds frequently. The claimant is limited to occasional
climbing of ladders, ropes, or scaffolds, frequently climbing ramps or stairs. He is limited to frequent use of moving machinery and occasional exposure to unprotected heights. Work is limited to simple, routine, and repetitive tasks; performed in a work environment free of fast-paced production requirements; involving only simple, work related decisions; and with few, if any, work place changes. The claimant is capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting. The claimant can perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday, with only occasional interaction with the public.Tr. at 18-28. II. Discussion
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on April 24, 1971 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from February 26, 2014, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ improperly rejected opinions by the treating psychiatrists and psychologists that Plaintiff's mental impairments prevented him from working;
2) the ALJ improperly cherry picked evidence to support his decision;
3) the ALJ failed to evaluate the side effects of medication;
4) the ALJ improperly found his shoulder impairment was not a severe impairment; and
5) the Appeals Council failed to properly evaluate new and material evidence.
The Commissioner counters that substantial evidence supports the ALJ's findings, the ALJ committed no legal error in his decision, and the Appeals Council properly concluded the additional evidence did not show a reasonable probability that it would change the outcome of the decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
inability to engage in 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.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo, or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Opinion Evidence
Plaintiff argues the ALJ erred in his RFC determination by rejecting the opinions of his treating psychiatrists or psychologists, which were entitled to controlling weight, and failed to engage in the proper analysis under 20 C.F.R. § 404.1527(c) in addressing these opinions. [ECF No. 16 at 23-30] (referencing Dr. Bishop, Dr. Smith, Dr. Lentz, and Dr. Swanson's opinions).
The Commissioner responds the ALJ did not reject the opinions, but provided a rationale, supported by substantial evidence that conformed with the regulations, for the various weights accorded to the opinions and adequately accounted for Plaintiff's impairments in the RFC assessment. [ECF No. 17 at 14-19].
The applicable regulations direct ALJs to accord controlling weight to treating physicians' opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). "[T]reating physicians are given 'more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'" Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
Effective March 27, 2017, the Social Security Administration rescinded SSR 96-2p, and it no longer applies the "treating physician rule." Rescission of SSR 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (March 27, 2017); 20 C.F.R. § 404.1520c (2017). The undersigned will review the ALJ's decision under the old rules codified by 20 C.F.R. § 404.1527 because the new regulation is not retroactive and Plaintiff filed his claim before it took effect. See 82 Fed. Reg. 15,263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017"); see also 20 C.F.R. § 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply").
If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's evaluation of the treating source's opinion does not end with the determination that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c), which include "(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, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527).
If the ALJ issues a decision that is not fully favorable, his 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 adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).
However, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). This court should not disturb an ALJ's determination as to the weight assigned "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).
In view of the foregoing authority, the undersigned considers Plaintiff's specific allegations of error.
i. Dr. Bishop and Dr. Smith's Opinions
Plaintiff began receiving mental health treatment from Dr. Bishop no later than April 2013, while he was still working. See, e.g. Tr. at 770-72. Dr. Bishop treated Plaintiff for depression, anxiety, and irritability and assessed dysthymic disorder, generalized anxiety disorder, and recurrent major depression. Tr. at 770-84. On February 26, 2014, due to Plaintiff's statements and his anxiety, depression, and restricted mood and affect, Dr. Bishop became concerned and arranged for Plaintiff to be voluntarily admitted to Behavioral Health. Tr. at 785-87. While at Behavioral Health, Plaintiff reported thoughts of suicide or shooting other people and feelings of hopelessness, anger, anxiety, and frustration. Tr. at 314, 317. Plaintiff "was stabilized through med[ication] management, group work, and psychoeducation," and "appeared to be at baseline [at] discharge," with an increased GAF score from 25 to 50 on March 5, 2014. Tr. at 316, 319.
Dr. Bishop essentially provided two opinions. First, on March 19, 2014, Dr. Bishop opined Plaintiff could not work due to his major depression and generalized anxiety disorder and estimated his period of incapacity began on February 26, 2014, and would end on April 3, 2014, with the additional treatment she scheduled. Id. However, on April 2, 2014, Dr. Bishop stated Plaintiff was under her care and she requested medical leave on his behalf through an undetermined date. Tr. at 750. Second, on April 18, 2014, Dr. Bishop completed an attending physician's statement and noted Plaintiff had been diagnosed with recurrent major depression and generalized anxiety disorder and had a GAF score of 50. Tr. at 748-49. Dr. Bishop extended Plaintiff's leave for an additional six weeks because she did not feel he could return to work, as the thought of returning increased his anxiety such that he became suicidal. Id. Dr. Bishop noted Plaintiff would continue treatment with Dr. Smith because she was leaving the practice. Id.
Plaintiff began treatment with Dr. Smith on May 12, 2014, and Dr. Smith noted Plaintiff's "[p]rimary fear [was] if [he] return[ed] to work at this time he may 'go off' and hurt someone." Tr. at 794-97. Plaintiff reported a depressed mood, nervousness, suicidal and homicidal thoughts, and worsened energy, concentration, and enjoyment. Id. Dr. Smith observed Plaintiff was fidgety, anxious, maintained poor eye contact, and was irritable, but he was alert and showed a linear, logical, and goal-directed thought process. Id. During this initial session, Plaintiff "became increasingly frustrated," his wife noted "he was confused and ready to go," and Dr. Smith terminated the session. Id. Dr. Smith assessed generalized anxiety disorder and continued Plaintiff's medical leave because he was "unable to attend safely to [the] job." Tr. at 796. In doing so, Dr. Smith completed an attending physician's statement of continued disability on May 21, 2014, and opined Plaintiff's attitude was guarded and suspicious, his speech was halted, his psychomotor activity was agitated, and his attention and concentration were impaired, but his memory was intact, his thought process was logical and coherent, and his insight was fair. Tr. at 746-47. Dr. Smith assigned a GAF score of 50. Id. Based on his observations, Dr. Smith opined Plaintiff was distracted, irritable, and had poor attention, such that he was unable to return to work at that time. Id.
The ALJ found Plaintiff's severe impairments included depressive disorder, anxiety disorder, bipolar disorder, and PTSD. Tr. at 18. However, the ALJ gave little weight to Dr. Bishop and Dr. Smith's opinions. Tr. at 26. The ALJ provided the following discussion:
The record also contains attending physician's statements of disability (Exhibit 21F). On May 21, 2014, [Dr. Smith] assigned a GAF score of 50 and indicated that [Plaintiff's] anticipated work return was undetermined (Exhibit 21F/1-2). On April 18, 2014, [Dr. Bishop] assigned a GAF score of 50 and recommended to return to work on May 14, 2014, or 6 to 8 weeks (Exhibit 21F/3-4). On March 19, 2014, Dr. Bishop indicated [Plaintiff] is incapacitated from work between February 26, 2014, through April 3, 2014 (Exhibit 21F/6-8). I gave little weight to these opinions, as the record does not support the inability to engage in substantial gainful activity. In fact, treating psychiatrist, Dr. Lentz[] opined [Plaintiff] has the mental ability to engage in simple work activity (Exhibit 20F).Tr. at 26.
Because Dr. Bishop and Dr. Smith were Plaintiff's treating psychiatrists, their opinions were presumptively entitled to controlling weight. See 20 C.F.R. § 404.1527(c) and SSR 96-2p. In its review, the court focuses on whether the ALJ's opinion is supported by substantial evidence or there was legal error, because its role is not to "undertake to re-weigh conflicting evidence, make credibility determinations or substitute [its] judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). Nevertheless, the undersigned recommends the court find the ALJ did not adequately consider these opinions in accordance with the provisions of 20 C.F.R. § 404.1527(c) and SSR 96-2p for several reasons. Although, the ALJ provided a few reasons to support his decision to accord little weight to the opinions of Dr. Bishop and Dr. Smith, he ignored the primary basis of the opinions and did not adequately consider supporting evidence in their treatment notes and the record.
First, although the ALJ acknowledged a treatment relationship existed with Dr. Bishop and Dr. Smith (Tr. at 23, 26), his decision does not reflect consideration of the frequency and length of Dr. Bishop's treatment relationship as required by 20 C.F.R. § 404.1527(c)(2)(i). Of note, Plaintiff began treatment with Dr. Bishop by April 2013 and saw her eight times before she left the practice in April 2014 and rendered her last opinion. See Tr. at 746-47, 794-804. "Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion," as she has developed a "longitudinal picture." 20 C.F.R. § 404.1527(c)(2)(i). Here, the ALJ failed to acknowledge Dr. Bishop provided treatment prior to rendering her opinions.
Dr. Bishop's opinion indicates she first treated Plaintiff in 2005, but the record only contains treatment notes from 2013 forward. Compare Tr. at 749, with Tr. at 770.
As arranged by Dr. Bishop prior to her departure, Plaintiff saw Dr. Smith three times from May 2014 through July 2014, before transferring to Dr. Lentz, who was within his insurance coverage, but only one examination occurred prior to Dr. Smith's opinion. See Tr. at 770-93.
Second, the ALJ failed to acknowledge the nature and extent of the treatment relationships, as Dr. Bishop and Dr. Smith served as Plaintiff's treating psychiatrists. See Tr. at 746-49. "Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided . . . ." 20 C.F.R. § 404.1527(c)(2)(ii). Here, the ALJ failed to do so.
Third, the ALJ summarily assigned little weight to Dr. Bishop and Dr. Smith's opinions because "the record [did] not support the inability to engage in substantial gainful activity. In fact, treating psychiatrist, Dr. Lentz[] opined that [Plaintiff] has the mental ability to engage in simple work activity (Exhibit 20F)." Tr. at 26. This appears to state the opinions were inconsistent or not supported.
However, the ALJ did not discuss the evidence that Dr. Bishop and Dr. Smith cited in support of their opinions, such as their sessions with Plaintiff. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) ("The more a medical source presents relevant evidence to support a medical opinion . . . the more weight we will give that medical opinion."). The ALJ also failed to acknowledge Dr. Bishop and Dr. Smith's opinions followed Plaintiff's psychiatric hospitalization for one week. See Tr. at 314-27 (admitting Plaintiff for treatment due to depression and increased agitation wherein he expressed suicidal and homicidal thoughts); see also 20 C.F.R. § 404.1527(c)(3), (4). Nor did the ALJ acknowledge Plaintiff remained on long-term disability through his prior employer from the date of his hospitalization in February 2014 through September 2016 due to his conditions. Tr. at 691.
The ALJ's reference to Dr. Lentz's March 2017 opinion is misleading. First, the opinion was rendered years after Dr. Bishop and Dr. Smith's opinions. Compare Tr. at 745 (providing Dr. Lentz's opinion dated March 6, 2017), with Tr. at 746-49 (providing Dr. Bishop and Dr. Smith's opinions in 2014). Second, although Dr. Lentz provided a check mark to indicate Plaintiff was capable of frequently performing simple job instructions, this same opinion explained other impairments that Plaintiff suffered and concluded Plaintiff "cannot work in any occupation." Tr. at 743-45. As discussed in more detail below, all of Plaintiff's treating psychiatrists or psychologists, including Dr. Lentz, have consistently opined Plaintiff has been unable to work due to his mental conditions since his hospitalization in 2014. Tr. at 748-49, 751-53 (providing Dr. Bishop's opinions in 2014), 746-47 (providing Dr. Smith's opinion in 2014), 496-97, 526, 743-45 (providing Dr. Lentz's opinions spanning from 2015 to 2017), 728-30 (providing Dr. Swanson's opinion in 2017). The ALJ ignored the consistencies amongst these opinions and assigned little or partial weight to every treating psychiatric opinion he considered. See Tr. at 24-26.
The ALJ did not acknowledge Dr. Bishop and Dr. Smith both specialized in psychiatry. See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5) ("We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.").
In sum, the ALJ failed to consider all of the pertinent factors in 20 C.F.R. § 404.1527(c). See Bilton v. Berryhill, No. 5:17-cv-2443-RMG-KDW, 2019 WL 288162, at *9 (D.S.C. Jan. 3, 2019), adopted by 2019 WL 286964 (D.S.C. Jan. 22, 2019).
ii. Dr. Lentz and Dr. Swanson's Opinions
The ALJ improperly addressed the opinions of Dr. Lentz and Dr. Swanson. Dr. Lentz, a psychiatrist, began treating Plaintiff in August 2014 and coordinated treatment with Dr. Swanson, a psychologist, from 2015 through the date of the hearing in 2017. Tr. at 496-97, 526, 728-30, 743-45. Both opined Plaintiff was unable to work due to his conditions.
On January 6, 2015, Dr. Lentz opined Plaintiff had shown "slight improvement in some symptoms," but his condition was "chronic and full remission [was] not expected." Tr. at 496-97. Dr. Lentz provided Plaintiff's diagnoses as bipolar disorder, generalized anxiety disorder, and panic disorder. Id. Dr. Lentz noted Plaintiff's grooming was appropriate, he was oriented, his thought process was normal, he had average cognitive ability, fair attention, and fair memory, but his affect was slightly anxious, his mood was slightly depressed, and he was slightly paranoid. Tr. at 497. Dr. Lentz also noted Plaintiff's abilities to complete basic ADLs and simple, routine tasks were adequate, but his abilities to relate to others and complete complex tasks were between poor and adequate. Id. Dr. Lentz explained Plaintiff had anxiety around people, except close family members, increased agoraphobia, and difficulty making decisions and being around people due to paranoia, panic attacks, and mood swings. Id. Plaintiff could not complete tasks due to racing thoughts, fatigue, or insomnia. Id.
On May 5, 2015, Dr. Lentz opined Plaintiff was being treated for psychiatric illness, was unable to work, and "totally [and] permanently disabled." Tr. at 526.
On February 16, 2017, Dr. Swanson opined Plaintiff could constantly follow work rules and occasionally deal with the public, use judgment, interact with supervisors, function independently, and maintain attention or concentration, but rarely relate to co-workers and never deal with work stresses. Tr. at 728-30. Dr. Swanson noted Plaintiff could understand, remember, and carry out simple job instructions constantly and detailed or complex instructions frequently. Id. Dr. Swanson also opined Plaintiff could occasionally demonstrate reliability, but rarely maintain his personal appearance, behave in an emotionally stable manner, or relate predictably in social situations. Id. Dr. Swanson noted Plaintiff was diagnosed with bipolar, panic, generalized anxiety, and intermittent explosive disorders and these diagnoses made him vulnerable to stress and more likely to behave erratically. Id. Dr. Swanson noted Plaintiff could become extremely angry and behave in an explosive manner and he would need to exceed the usual number of breaks in an eight-hour workday to calm down and miss more than four workdays per month. Id. Dr. Swanson opined Plaintiff's impairments would remain into the indefinite future, he was not a malingerer, and his psychological impairments affected his behavior. Id.
On March 6, 2017, Dr. Lentz completed a medical source statement regarding Plaintiff. Tr. at 743-45. She opined Plaintiff could constantly follow work rules, frequently use judgment, occasionally relate to co-workers, interact with supervisors, function independently, and maintain concentration, and rarely deal with the public and work stresses. Id. Dr. Lentz opined Plaintiff could understand, remember, and carry out simple job instructions frequently, detailed jobs occasionally, and complex jobs rarely. Id. Dr. Lentz also opined Plaintiff could occasionally maintain his personal appearance, behave in an emotionally-stable manner, or relate predictably in social situations and rarely demonstrate reliability. Id. Dr. Lentz noted Plaintiff became easily irritated, frustrated, anxious, and tearful; had decreased concentration, energy, and motivation; had difficulty with interpersonal interactions and hypersensitivity to criticism; and was easily overwhelmed. Id. In addition, Plaintiff's potential cognitive ability was slowed from medications and he suffered from panic attacks and agoraphobia. Id. Dr. Lentz stated Plaintiff's mental impairments would require him to exceed the usual number of breaks and interfere with his ability complete an eight-hour workday or cause him to miss more than four workdays per month. Id. Dr. Lentz opined Plaintiff's impairments had lasted or would last twelve months, Plaintiff was not a malingerer, and Plaintiff had a chronic, persistent psychiatric illness, limited response to treatment, potential cognitive slowing, and limited response to multiple psychiatric medications. Id. Dr. Lentz concluded Plaintiff could not work in any occupation, but could manage benefits in his own best interest. Id.
As briefly noted above, the ALJ assigned various weights to Dr. Lentz and Dr. Swanson's opinions, essentially accepting those portions that supported Plaintiff's ability to work, while rejecting the portions that supported he was unable to do so. Tr. at 24-26. The ALJ assigned little weight to Dr. Lentz's January and May 2015 opinions that stated Plaintiff could not work, his ability to relate to others was adequate to poor, and he could rarely deal with the public or work stresses because the issue of disability was reserved to the Commissioner and Dr. Lentz's treating records supported Plaintiff had "adequate ability to relate to medical providers, being pleasant, calm, and cooperative." Tr. at 24-25. In evaluating Dr. Lentz's March 2017 opinion, the ALJ noted,
the evidence of record does not support Dr. Lentz's opinion that [Plaintiff] can rarely work under stress, occasionally maintain personal appearance, occasionally behave in an emotionally stable manner, and occasionally relate predictably in social situations, but can rarely demonstrate reliability. In fact, this opinion is internally inconsistent with Dr. Lentz treatment notes showing that for roughly three years, [Plaintiff] consistently appeared to doctor[s'] appointment[s] neatly with fair to good grooming, and behaved pleasantly with congruent affect and logical/goal[-]oriented thought process.Tr. at 25 (citing Exhibits 7F/9, 16F/3, and 19F/3).
Likewise, the ALJ assigned little weight to Dr. Swanson's opinion that Plaintiff could rarely relate to co-workers, never deal with work stresses, rarely behave in an emotionally stable manner, rarely relate predictably in social situations, and occasionally demonstrate reliability. Tr. at 25. The ALJ reasoned that Plaintiff "behaved appropriately with medical providers," "complied with medication[,] and was a reliable patient when completing physical therapy and attending doctor[s] appointment[s]." Tr. at 25-26.
As explained by the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"), consistency means "how consistent the 'medical opinion is with the record as a whole,'" and supportability is found "in the form of the quality of the explanation provided for the medical opinion and the amount of relevant evidence—'particularly medical signs and laboratory findings'—substantiating it." Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 256 (4th Cir. 2017). "Additionally, any other factors 'which tend to support or contradict the medical opinion' are to be considered." Id. (quoting 20 C.F.R. § 404.1527(c)(6)). "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). The regulations provide basic work activities include not only understanding, carrying out, and remembering simple instructions, use of judgment, and dealing with changes in a routine work setting, but also responding appropriately to supervision, coworkers, and usual work situations. 20 C.F.R. § 404.1521(b) (effective Feb. 11, 1991, to Mar. 26, 2017); accord 20 C.F.R. § 404.1522(b) (effective Mar. 27, 2017).
Here, the ALJ acknowledged the record supported Plaintiff's limited ability to deal with the public, but gave little weight or did not address his limitations regarding coworkers and dealing with work stresses or explain why one was supported and not the other. Tr. at 24-26. This is important because Plaintiff was admitted for one week of psychiatric treatment in February 2014 due to suicidal and homicidal statements and reported issues with coworkers and stress at work. Tr. at 314-27, 785-87.
Likewise, Plaintiff's treatment compliance and behavior with medical providers does not undermine or address these limitations. For example, Plaintiff's wife reported he was better when she was with him and the record reflects she accompanied him to many doctor visits. See, e.g., Tr. at 485-88, 679, 681, 683, 687, 689, 691-92, 697-700, 711, 709, 716.
Furthermore, the ALJ overlooked Plaintiff's affect was congruent with his mood, which was generally noted as depressed, and a part of the reason for Plaintiff's admission for psychiatric treatment. See, e.g., Tr. at 19, 490. Notably, the factors pointed out by the ALJ in support of Plaintiff's ability to work were the factors present when Plaintiff was placed on medical leave. See, e.g., Tr. at 785-87 (reflecting Dr. Bishop noted Plaintiff exhibited normal concentrating ability, intact memory and judgment, and adequate fund of knowledge, with a linear thought process that was logical and goal-directed, but his mood and affect were anxious, depressed, and restricted). Thus, the ALJ ignored the relevant factors in his analysis.
In addition, Plaintiff reported various issues to his treating psychiatrists and psychologist regarding his depression, anxiety, panic attacks, and other issues from 2014 to 2017 that impacted his ability to work and they regularly documented Plaintiff's reported struggles and issues with his mood and affect. Elsewhere in his decision, the ALJ did not discuss Plaintiff's specific reports and dismissed them with the statement, "[d]espite [Plaintiff's] self-reported instances of mental impairments, during all the treatments, [Plaintiff] consistently appeared neat, pleasant, cooperative, calm, with congruent affect and logical/goal[-]oriented thought process and fair insight/judgment." Tr. at 23 (citing Exhibits 7F/9, 16F/3, and 19F/3). Again, the ALJ skipped over the fact Plaintiff's affect was congruent with his mood, he failed to explain how the other factors, such as a logical and goal-oriented thought process, undermined Plaintiff's inability to work when they were present at the time he was hospitalized, and he did not reconcile this information with the impairments that he found to be severe—depressive, anxiety, and bipolar disorders and PTSD.
See, e.g., Tr. at 785 (Dr. Bishop noting Plaintiff' mood and affect were anxious, depressed, and restricted in February 2014); Tr. at 788-90 (Dr. Bishop noting Plaintiff's depression symptoms had "somewhat improved" after his psychiatric hospitalization, but his anxiety worsened in March 2014); Tr. at 748-49, 791-93 (Dr. Bishop noting Plaintiff's depression and anxiety had improved overall, but he was overwhelmed at the thought of returning to work, and extending his medical leave as the thought of returning increased his anxiety so much that he became suicidal); 746-47, 794-97 (Dr. Smith noting Plaintiff's "[p]rimary fear [was] if [he] return[ed] to work at this time he may 'go off' and hurt someone" and, during the session, Plaintiff became so frustrated that the session had to be terminated, resulting in Dr. Smith opining Plaintiff was "unable to attend safely to [the] job" in May 2014); 798-801 (Dr. Smith noted Plaintiff had a depressed and unstable mood, showed hostility, frequent anger, and worsened energy and concentration in June 2014); 802-04 (Dr. Smith observing Plaintiff's mood and affect were depressed, he was irritable, and his thought process was not concrete in July 2014); 489-93 (Dr. Lentz noting Plaintiff's mood and affect were depressed and diagnosing bipolar disorder with moderate depression, generalized anxiety disorder, and panic disorder in August 2014); 482-83 (Dr. Lentz observing Plaintiff's mood and affect were terrible and he had racing thoughts and paranoia in September 2014); 480 (Dr. Lentz noting Plaintiff's mood and affect were up and down, with increased insomnia and a panic attack, and she adjusted Seroquel in November 2014); 478-79 (Dr. Lentz noting Plaintiff's mood and affect were "OK" with some improvement, but she still adjusted Seroquel in December 2014); 496-97 (Dr. Lentz acknowledging Plaintiff's "slight improvement in some symptoms," but opining his condition was "chronic and full remission [was] not expected" and explaining Plaintiff had difficulty making decisions, being around people, and completing tasks due to paranoia, panic attacks, mood swings, racing thoughts, fatigue, anxiety, agoraphobia, and insomnia in January 2015); 718 (Dr. Swanson assessing a GAF score of 45 and noting therapy goals included decreasing Plaintiff's depression and anxiety, expressing anger more appropriately, coping with bipolar disorder, and decreasing panic attacks in April 2015); 679, 717 (Dr. Lentz and Dr. Swanson noting Plaintiff's mood and affect were "up [and] down," he had worsened paranoia, and he reported worsened anger and anxiety with mood swings in June 2015); 685, 714 (Dr. Lentz noting Plaintiff's mood and affect were "alright or not so" and Plaintiff's report of increased panic attacks, insomnia, mood swings, frustration, and anxiety with Dr. Swanson assessing Plaintiff's GAF score as 41 in September 2015); 693-94 (Dr. Lentz noting Plaintiff's report of increased panic attacks, mood swings, and anger spells and his mood and affect were "not great" in March 2016); 695-96 (Dr. Lentz noting Plaintiff's report that he almost committed suicide recently and observing Plaintiff's mood and affect were down and he contracted for safety in April 2016); 737-38 (Dr. Lentz noting Plaintiff's mood and affect were depressed in October 2016); 728-30 (Dr. Swanson opining Plaintiff's various limitations included he could rarely relate to coworkers and never deal with work stresses, he could become extremely angry and behave in an explosive manner, he would need to exceed the usual number of breaks in an eight-hour workday to calm down, his impairments would remain into the indefinite future, he was not a malingerer, and his psychological impairments affected his behavior in February 2017); 743-45 (Dr. Lentz opining Plaintiff could occasionally relate to co-workers and rarely deal with the public and work stresses, he became easily irritated and overwhelmed, he suffered from panic attacks and agoraphobia, his mental impairments would require him to exceed the usual number of breaks, he was not a malingerer, and he could not work in any occupation).
The ALJ also noted Plaintiff "had improved symptoms" after his hospitalization and pointed to portions of the treatment notes that reflected mood improvements, calmer social interactions, or no panic attacks. Tr. at 23 (citing Exhibits 17F/2, 24F/22-24). However, the ALJ failed to reconcile these selected facts with others within the same treatment note or later notes. See, e.g., (Exhibit 24F/22-24) (Dr. Bishop noting Plaintiff's "depression improved overall" and his "anxiety [was] better in general but overwhelming re thought of return to work," so she extended his medical leave in April 2014). Moreover, none of Plaintiff's treating psychiatrists or psychologists opined he had sustained improvement, such that he was able to return to work. To the contrary, they consistently reiterated Plaintiff was unable to work due to his conditions. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2011) ("Dr. Oh's statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace." (citing Kellough v. Heckler, 785 F.2d 1147, 1153 (4th Cir. 1986)).
Thus, the ALJ did not properly show how Dr. Lentz and Dr. Swanson's opinions were inconsistent or not supported by the record.
The Commissioner asserts the ALJ reasonably afforded greater weight to the state agency psychologist, Dr. Horn, and nurse family practitioner, Nurse Owens. Tr. at 23-24, 109, 522, 729. However, the Fourth Circuit has recognized the rejection of "treating physicians in favor of the state medical examiners . . . raises red flags because the state medical opinions are issued by non-examining physicians and are typically afforded less weight than those by examining and treating physicians." Radford v. Colvin, 734 F.3d 288, 295-96 (4th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). Furthermore, a nurse practitioner does not qualify as a treating source under the rule, but the ALJ utilized her opinion about Plaintiff's depression to outweigh the psychiatrist and psychologist's opinions who were treating him for it. The regulations dictate the opposite result. See 20 C.F.R. § 404.1513(a), (d) (effective Sept. 3, 2013 to Mar. 26, 2017); 20 C.F.R. § 404.1527(a)(2); 20 C.F.R. § 404.1527(c)(2)(ii) ("Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided . . . For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her medical opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain."). Moreover, Nurse Owens was not as familiar with Plaintiff's condition, as she listed Bupropion as the only medication prescribed for depression, noted it had helped his condition, and she had not recommended psychiatric care. See, e.g., Tr. at 522; see also 20 C.F.R. § 404.1527(f)(1). However, the record is clear that Dr. Lentz had prescribed Seroquel, Depakote, Klonopin, and Effexor for Plaintiff's conditions and had been treating him for over eight months at the time of Nurse Owens' opinion. Tr. at 496.
In Testamark v. Berryhill, the Fourth Circuit concluded the ALJ erred when he found the treating doctors' opinions "were inconsistent with the medical record," as he "relied heavily on observations picked from check-the-box forms in [the plaintiff's] treatment notes. 736 F. App'x 395, 398 (4th Cir. 2018). The Fourth Circuit noted, "[t]he ALJ did not explain the significance of these observations or why they were inconsistent with the functional limitations assessed by [the plaintiff's] treating sources" and "symptoms of mental illness may wax and wane over the course of treatment," such that, "[b]y relying on these limited observations to discredit the treating source opinions, the ALJ's opinion seizes on insignificant inconsistencies in the treatment record while overlooking the record's broader import." Id. at 398-99.
Likewise, as noted above, the ALJ ignored the record's broader import that was relayed in the treatment notes of Plaintiff's psychiatrists and psychologist and encompassed within their opinions. In sum, the ALJ failed to address this conflicting evidence and provide an adequate explanation for his decision not to accord greater weight to these treating opinions. See Monroe, 826 F.3d at 189 (stating the ALJ must "build an accurate and logical bridge from the evidence to his conclusion"); see also Brown, 873 F.3d at 260, 271 (finding "the ALJ erred by crediting [the non-examining source] and rejecting the opinions of [the plaintiff's] treating and examining sources"). Because the ALJ's evaluation of Dr. Smith, Dr. Bishop, Dr. Lentz, and Dr. Swanson's opinions does not reflect careful weighing of the relevant factors in 20 C.F.R. § 404.1527, the undersigned recommends the court find it is unable to determine whether substantial evidence supports the ALJ's decision and remand this case.
2. Additional Allegations of Error
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. § 404.1545(a)(1)), and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. April 11, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).