Opinion
Civil Action No. 6:19-1973-DCC-KFM
09-10-2020
Claudia Turner, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on May 22, 2015, alleging that she became unable to work on December 1, 2014. The applications were denied initially and on reconsideration by the Social Security Administration. On June 9, 2016, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and William Stewart, an impartial vocational expert, appeared on February 1, 2018, considered the case de novo, and on June 15, 2018, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 13-20). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on May 23, 2019 (Tr. 1-5). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2015.
(2) The claimant has not engaged in substantial gainful activity since December 1, 2014, the alleged onset date (20 C.F.R. §§ 404.1571, 416.971 et seq.).
(3) The claimant has the following severe impairments: affective disorders, anxiety disorders, and post-traumatic stress disorder (PTSD) (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926)).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform work without exertional limitations, but with other limitations as follows: The claimant would be 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, workplace changes. The claimant would be capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting and 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 and co-workers.
(6) The claimant is capable of performing past relevant work as an Inspector and Hand Packager. This work does not require the performance of past relevant work-related activities
precluded by the claimant's residual functional capacity (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from December 1, 2014, through the date of this decision (20 C.F.R. §§ 404.1520(f), 416.920(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) has an impairment that prevents past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 38 years old on the alleged onset date (December 1, 2014) and 41 years old at the time of the ALJ's decision (June 15, 2018) (Tr. 33). She has a high school education and past relevant work as an inspector/ hand packager, hand trimmer, and certified nursing assistant ("CNA") (Tr. 19, 33-34).
On January 19, 2015, the plaintiff, who was married to her second husband for less than a year, left her home and moved in with her father and his girlfriend. She had lost custody of her ten-year-old daughter to her first husband's mother, was unemployed, and had pending "legal issues" (Tr. 441-57). On January 21, 2015, the plaintiff was treated in the AnMed Health emergency room in Anderson, South Carolina, for suicidal ideation and a lacerated wrist, which required sutures. It was noted that the plaintiff had cut both of her wrists. She indicated that she did not think that she really wanted to die. The plaintiff stated that her father's house was cold, contained no food, and caused her to have "flash-backs" about his past abuse. On examination, she had a normal affect, responded appropriately, and was fully alert. She did not exhibit outward signs of anxiety or psychosis. When her urine screen showed positive signs of cannabinoids and benzodiazepines, the plaintiff stated that she had a ten-year history of daily THC abuse and had last "used" one week prior. It was noted she had been noncompliant with her medications and had stressors due to relationship problems and a recent change in environment. The plaintiff was transferred for inpatient treatment at Springbrook Behavioral System due to impulsive behaviors and emotional reactivity (Tr. 422-47). She received inpatient treatment for her mental symptoms from January 22-30, 2015. She was noted to have multiple childhood and adult traumas, some of which involved her father. She denied any legal history and, on examination, had no auditory or visual hallucinations, no obsessive-compulsive phenomena, and no deficits with full recall or with logical, linear, and goal directed thoughts (Tr. 453). The plaintiff remained at Springbrook for eight days and had a "very positive response" to individual, group, and milieu therapies and medications. On admission, her Global Assessment of Functioning ("GAF") was 20, and, on discharge, it was 57. Upon discharge, she was diagnosed with major depressive disorder, chronic, severe, without psychotic features; rule out bipolar disorder with depressed mood; post traumatic stress disorder ("PTSD"); and borderline personality disorder. Her discharge medications were Effexor, clonazepam, Remeron, and Diflucan. The plaintiff's treatment providers strongly recommended that she not return to stay at her father's house, but she was "adamant" about going back (Tr. 443, 451-55).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 11 and 20 indicates some danger of hurting self or others or occasionally fails to maintain minimal personal hygiene or gross impairment in communication. Id. A GAF score between 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or social functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On April 13, 2015, B. Rhett Myers, M.D., of Upstate Psychiatry, evaluated the plaintiff. Dr. Myers noted that the plaintiff had been followed at the Stress Management Center in Anderson for many years and that she had a history of mood instability and mood swings. She admitted that she had always self-medicated with marijuana. On examination, the plaintiff's affect was mildly blunted. She was appropriately oriented, and her thoughts were goal directed. There was no evidence of suicidal or homicidal ideation or hallucinations or delusions. Her memory and concentration were fair, and her insight was adequate. She was of average intelligence. Dr. Myers diagnosed major depressive disorder, recurrent; rule out bipolar disorder NOS; rule out attention deficit hyperactivity disorder ("ADHD"); history of borderline personality disorder; and a GAF score of 65. Dr. Myers prescribed Remeron, Buspar, trazodone, and Effexor, and he referred her for individual psychotherapy (Tr. 457-58).
A GAF score between 61 and 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well. DSM-IV, 32-34.
On May 1, 2015, Rashmi Chandra, M.D., evaluated the plaintiff as a new patient. She reported a 25-pound unintentional weight loss in one month's time. The plaintiff also complained of urinary frequency, fatigue, depression, and anxiety. She also reported no depressed mood, no loss of interests, and no insomnia. Dr. Chandra noted that the plaintiff was diagnosed 18 years prior with major depressive disorder and had shown improvement. Dr. Chandra diagnosed unintentional weight loss, urinary frequency, and depression with anxiety and ordered blood work (Tr. 479-83).
On June 1, 2015, Dr. Myers evaluated the plaintiff for followup. The plaintiff's mood was anxious, and her affect was flat. Dr. Myers noted that the plaintiff had filed for disability secondary to her inability to hold a job. He added Klonopin to her medications and referred her for individual psychotherapy (Tr. 458-59).
Dr. Myers' treatment notes are largely handwritten and difficult to read.
On June 12, 2015, Dr. Chandra evaluated the plaintiff for followup of multiple conditions and prescribed Contrave and sulfamethoxaole for obesity (Tr. 467-70).
On June 18, 2015, Dr. Myers completed a physician's statement regarding the plaintiff. Dr. Myers indicated that her disability was permanent, and he stated, "The individual is unable to work, or participate in activities to prepare for work." Dr. Myers indicated that the plaintiff's diagnoses were bipolar affective disorder and major depressive disorder (Tr. 464-65).
On July 25, 2015, Frank Horn, Ph.D., a non-examining consultant on contract to the Administration, completed a psychiatric review technique questionnaire and mental residual functional capacity ("RFC") evaluation. Dr. Horn indicated that the plaintiff's mental impairments caused mild and moderate limitations (Tr. 70-75). Dr. Myers also evaluated the plaintiff on this date. Her mood was depressed, and her affect was flat. She admitted to suicidal thought but had no plan. Dr. Myers added Abilify to her medications (Tr. 495).
On September 9, 2015, Dr. Myers evaluated the plaintiff, who reported having panic attacks. Dr. Myers found the plaintiff to be cooperative with euthymic mood. Her thought content was normal, and her judgment and insight were fair (Tr. 494). On November 4, 2015, Dr. Myers evaluated the plaintiff. She reported compliance with her medications, and she indicated that her medication was helpful. Dr. Myers found her to be cooperative. The plaintiff's mood was depressed, and her affect was anxious (Tr. 493).
On November 5, 2015, Dr. Myers indicated that he had to terminate his professional relationship with the plaintiff due to her having multiple prescriptions for controlled medications filled at multiple pharmacies, which was a crime in South Carolina. Dr. Myers referred her to her local mental health department (Tr. 505).
On February 3, 2016, Ernest Martin, M.D., initially evaluated the plaintiff for anxiety and depression. Dr. Martin noted that the plaintiff had stopped seeing Dr. Myers but that she had been stable on the medications he had prescribed. She reported that she could not slow down and was not sleeping. The plaintiff's symptoms also included decreased energy, being very impulsive, appetite changes, weight loss, disorientation, confusion, memory difficulties, decreased concentration, panic attacks, mood swings, hallucinations, and paranoia. Dr. Martin noted her histories including past suicide attempts. Dr. Martin diagnosed bipolar disorder mixed episode with psychotic features and PTSD/panic disorder (Tr. 628-32).
On February 10, 2016, Dr. Martin evaluated the plaintiff. She reported that her sleep was worse, and her appetite was unchanged. The plaintiff had normal grooming and independent activities of daily living. On examination, her mood was okay, and her affect was sad. She was fully oriented with fair memory, judgment, insight, attention, and concentration. Dr. Martin diagnosed bipolar disorder and possible borderline personality disorder. Dr. Martin restarted the plaintiff 's medications and advised individual therapy (Tr. 627).
The plaintiff was hospitalized from February 22 to March 3, 2016, for an acute exacerbation of depression with suicidal ideation and psychotic features. She admitted that she had been considering hanging herself with a belt in her closet and that she was also having auditory hallucinations. The plaintiff had been drinking that week, and she smoked marijuana the morning of February 22nd. Her estranged husband, with whom she remained friends, drove her to the emergency room for stress related to her father who was "not allowing her freedom" (Tr. 523-43). The plaintiff complained that she was doing a lot of work around her father's house and caring for her only child, who was 11 years old (Tr. 542). The plaintiff underwent individual, group, milieu, activity, and pharmacotherapies. She invested herself in all introduced processes and was able to rehearse concentration and focus on task with some anxiety but without decline in function. Her behavior was appropriate, calm, pleasant, and supportive. She was attentive and calm, interacted with her peers, and reported that she enjoyed sports and reading novels. Her mood improved, and her suicidal thoughts ceased. She was advised on outpatient followup (Tr. 520, 539-43).
On March 1, 2016, Dr. Brian Keith, a licensed counseling psychologist, performed a consultative examination of the plaintiff at the Commissioner's request. Dr. Keith indicated that he had reviewed some records from Upstate Psychiatry. The plaintiff reported that she had been hospitalized within the past 12 months for suicidal thoughts and had just been released from the Anderson Medical Center on the day of the examination. The plaintiff reported that she typically woke up between 11:00 a.m. and noon time. She reported that she read and watched television all day and went to bed at 9:00 p.m. She had a driver's license and could drive, but did not have a vehicle. She met her hygiene and grooming needs without assistance. She used a vacuum cleaner to sweep the floor, but she typically did not finish what she started. The plaintiff could prepare meals by making sandwiches but did not dine out in restaurants. She did not go to the bank or post office. Her hobbies included reading and watching television. The plaintiff reported that she could wash dishes and clothes. She reported that her father's girlfriend did her grocery shopping. She stated that she did not have a checking or savings account, but felt she could manage her own finances. Dr. Keith noted that the plaintiff was taking Effexor, Vistaril, Buspar, Lamictal, and Remeron. Dr. Keith noted her histories, including childhood trauma of being sexually abused by a now deceased uncle from the ages of four to seven. She was married twice, presently divorcing, and had become involved in another relationship. She had four arrests. She had been smoking marijuana two to three times a week until last month. She said people would bring it to her. The plaintiff told Dr. Keith that she last worked as a "packer" and had quit after four years. Dr. Keith noted that the plaintiff was casually dressed and generally neat in appearance (Tr. 514-15).
On examination, the plaintiff was oriented in all spheres and correctly identified the day and month. Her eye contact was appropriate. Her affect was generally restricted, but she smiled a few times. Her psychomotor functioning was normal for ambulation, but she ambulated slowly. Her speech was clear, but soft. The plaintiff reported that she was depressed "all the time." She reported that she cried a lot, felt empty, and had no reason to do anything. She stayed to herself. The plaintiff also described having panic attacks, which made her feel like she was going to pass out. Her heart raced during the panic attack, and they occurred once a day "out of the blue." Dr. Keith indicated that the plaintiff's demeanor was somewhat reserved overall. He noted that she was alert and attentive, coherent, and had no circumstantial dialogue. She reported having daily suicidal thoughts, but denied any plans to harm herself. She endorsed auditory hallucinations and stated that she heard a voice that used vulgar words such as "slut." The plaintiff reported that she could hear people in another room talking about her, and she stated, "They hate me." She reported the voices had been occurring on a daily basis for the past six months. Dr. Keith indicated that her remote memory generally appeared intact as she was able to recall attending Homeland Park Elementary School as a child. She was able to correctly repeat five numbers after immediate presentation. She could recall one item out of three after a five minute delay with interference. She reported that her energy level was low from day to day and that her appetite varied, from eating a lot to eating nothing. The plaintiff reported that her sleep was an issue and that she wanted to sleep all the time. When asked why she thought she was unable to work, the plaintiff stated "the voices, it's real to me." Dr. Keith indicated that cognitively, the plaintiff 's abstract reasoning appeared adequate. She was able to correctly identify a similarity between an apple and a banana. She was able to correctly identify the meaning of the word "enormous" and to correctly identify the current president as well as the previous president. The plaintiff was able to correctly compute a basic arithmetic problem. Her judgment appeared intact, and she was able to spell the word "world" correctly forward and backwards. Dr. Keith found that, overall, the plaintiff 's cognitive functioning appeared to fall within the average domain. Dr. Keith diagnosed depression with psychotic features, panic disorder without agoraphobia, and cannabis use, although the plaintiff reported she has not smoked marijuana within two weeks of the examination. Dr. Keith explained that cognitively, the plaintiff appeared capable of completing moderately complex tasks and following moderately detailed instructions. He indicated that the plaintiff appeared capable of managing her money. He noted that she may have some difficulty with concentration and maintaining a satisfactory job pace throughout the course of the day (Tr. 514-17).
On March 8, 2016, Dr. Martin evaluated the plaintiff. On examination, she was unrelaxed. Her mood was "okay," and her affect was congruent with her mood. She was fully oriented with a normal memory. The plaintiff 's judgment and insight were fair as were her attention and concentration. Dr. Martin advised individual therapy, and he increased her doses of Vistaril and Lamictal (Tr. 626). On March 15, 2016, she had no acute complaints. Dr. Martin increased the plaintiff's doses of Lamictal and Klonopin (Tr. 625). On April 5, 2016, Dr. Martin noted improvement, better mood, and her affect was congruent with her mood. She also had better sleep, better interactions and participation, and fair attention and concentration. Dr. Martin increased her dose of Effexor and decreased her dose of trazodone (Tr. 624-26).
On May 2, 2016, Janet Telford-Tyler, Ph.D., non-examining consultant on contract to the Administration, completed a psychiatric review technique questionnaire and mental RFC evaluation. Dr. Telford-Tyler found that the plaintiff's mental impairments caused mild and moderate limitations (Tr. 102-07).
On October 19, 2016, the plaintiff went to the AnMed emergency room for leg swelling. The plaintiff was oriented with normal mood and able to respond appropriately to questions (Tr. 728).
On February 2, 2017, Maureen Burbage, M.D., of AnMed Health Psychiatry, saw the plaintiff for a psychiatric evaluation. The plaintiff told Dr. Burbage that Dr. Martin dismissed her because he was concerned that she was suicidal. Dr. Burbage noted that the plaintiff had a history of sexual, physical, and emotional abuse by her father. She admitted she had checking and rechecking behaviors. She stated that she loses jobs due to constant "checking" of her work. She reported playing computer games all day long to avoid thought. She had panic attacks throughout the day. The plaintiff was easily irritated and hypervigilant. She reported that she dreaded sleeping due to trauma-related nightmares. Dr. Burbage indicated that the plaintiff had a history of superficial cutting and difficulty leaving her home. On examination, the plaintiff was alert and oriented. She had poor hygiene and had not bathed for days. She had an anxious and depressed but appropriate mood and affect. The plaintiff had a normal rate of thought but lost her train of thought mid-sentence. Her judgment and insight were intact. Dr. Burbage diagnosed PTSD, obsessive compulsive disorder ("OCD"), panic disorder with agoraphobia, and depression. Dr. Burbage increased the plaintiff's dose of Effexor, added Geodon, decreased mirtazapine dose, and switched Klonopin to Ativan (Tr. 671-75).
On March 2, 2017, the plaintiff reported some relief of anxiety with Ativan. She reported having panic attacks. Dr. Burbage instructed her on breathing techniques, mindfulness, and focusing. Dr. Burbage noted that the plaintiff's level of understanding appeared to be below average, and she suspected that the plaintiff had borderline intellectual functioning. She complained of poor sleep. Her eye contact was improved, and she had poor hygiene. She sat on the edge of her chair and examined her surroundings. The plaintiff's voice showed decreased volume. Her mood and affect were anxious and depressed, but appropriate. Her insight and judgment were fair. Dr. Burbage noted normal memory, attention, language, and fund of knowledge. The plaintiff admitted to recent auditory hallucinations, obsessions, and compulsions. She had no delusions or suicidal ideations. She had grossly intact cognition, and she was cooperative. The plaintiff's behavior was noted to be somewhat vigilant. Dr. Burbage assessed that the plaintiff was very impaired by psychosis, anxiety, and agoraphobia and, thus, not able to learn new material, focus on tasks, or handle instruction or criticism. She was diagnosed with PTSD, depression, panic disorder with agoraphobia, and psychosis. Dr. Burbage ordered blood work and prescribed lorazepam, doxepin, lamotrigine, prazosin, and ziprasidone (Tr. 666-70). On March 23, 2017, the plaintiff was seen for followup. She reported that she was able to get out of her house a few times since her last visit. Dr. Burbage noted that the plaintiff was grappling with residual depression and anxiety, but she had some overall improvement. The plaintiff complained of auditory hallucinations, but she suggested that the voices might not be real, which Dr. Burbage noted was an improvement. On examination, the plaintiff was appropriately oriented. Her mood was depressed and anxious, and her affect was dysthymic, anxious, appropriate, and blunted. Dr. Burbage diagnosed severe episodes of recurrent major depressive disorder with psychotic features, panic disorder with agoraphobia, mixed obsessional thoughts and acts, and PTSD. Dr. Burbage recommended that the plaintiff taper off of Lamictal, since it was not helping (Tr. 663-65).
On April 1, 2017, the plaintiff reported that her panic attacks were controlled, but it was still difficult for her to leave her house. Dr. Burbage noted the plaintiff was scheduled to start individual therapy. Dr. Burbage indicated that the plaintiff showed isolation of affect, as she wore a slight smile no matter the subject. Dr. Burbage continued her medications and indicated that, although the plaintiff was improved overall, she was still significantly impaired (Tr. 660-62). On April 27, 2017, Dr. Burbage evaluated the plaintiff for followup. The plaintiff had been hospitalized two weeks prior. She reported she had great difficulty leaving her home. She admitted that she had been previously using THC that she got from a man who brought it to her in exchange for sex. On examination, her mood was better but still depressed. Her affect was odd, and she had a slight smile throughout the session even when discussing traumatic events. Dr. Burbage adjusted her medications (Tr. 657-59).
On April 28, 2017, Dr. Burbage completed a treating physician's opinion of disability regarding the plaintiff. Dr. Burbage indicated that the plaintiff was disabled since childhood trauma in 1986 and noted that the disabling diagnoses were agoraphobia, PTSD, and major depressive disorder, severe with psychosis (auditory hallucinations, unable to differentiate voices from reality at times, recent suicide attempt). Dr. Burbage noted that the plaintiff was unable to leave her home without severe distress and panic, and experienced flashbacks and auditory hallucinations. She indicated that marijuana use was a factor in this case but that if the plaintiff stopped using, she would still be disabled. Dr. Burbage further stated that, if the plaintiff attempted to work, she would likely require many unscheduled breaks due to panic attacks and would be off task throughout the day. Dr. Burbage explained that criticism from supervisors (especially male) could lead to emotional dysregulation and outbursts and that change could exacerbate anxiety and panic. Dr. Burbage based her opinions on DMS-IV diagnostic criteria and the plaintiff's recent suicide attempt and inability to leave her home without severe distress. She indicated that the plaintiff had moderate limitation in her ability to understand, remember, or apply information, and marked limitations in her abilities to interact with others; to concentrate, persist, or maintain pace; and to adapt or manage oneself (Tr. 640-43).
On May 25, 2017, Dr. Burbage evaluated the plaintiff for followup. The plaintiff indicated that because of therapy she had stopped trading sex for marijuana. She was working on positive affirmations and pushing herself to leave her home, which was a tremendous improvement. On examination, the plaintiff had a depressed and anxious mood and a blunted affect. Her insight was improving, and her judgment was good. Dr. Burbage increased her dose of Lexapro and continued her other medications (Tr. 654-56). On June 22, 2017, the plaintiff complained of continued anxiety, but her mood was better. She reported that prazosin was working for nightmares and helped with hypervigilance. The plaintiff admitted to one relapse with marijuana. She was forcing herself to go into public more, but she was only able to tolerate being out for short periods of time. On examination, she had an anxious mood and a detached and inappropriate affect. She smiled throughout the interview. Dr. Burbage adjusted her medications (Tr. 651-53).
On August 17, 2017, Dr. Burbage evaluated the plaintiff for followup. She complained that her antidepressant was no longer working as well as it had before. The plaintiff admitted that she was no longer leaving her home, that she felt a deep sadness, and that she had increased insomnia. She was no longer having auditory hallucinations. On examination, the plaintiff had a depressed and anxious mood and constricted affect. Dr. Burbage prescribed Paxil, Seroquel, prazosin, and Geodon (Tr. 648-50).
On October 19, 2017, Dr. Burbage evaluated the plaintiff. She admitted to taking too much of one of her medications. She reported having auditory hallucinations that were unchanged. On examination, the plaintiff was appropriately oriented. Her mood was anxious; affect was anxious, blunted, and congruent to mood; insight was fair; and judgment was fair/poor. Dr. Burbage prescribed gabapentin for anxiety, Paxil for mood and anxiety, and Seroquel for mood and insomnia. Dr. Burbage also continued prazosin for hyperarousal and nightmares (Tr. 645-47). On November 16, 2017, the plaintiff reported that her anxiety had progressed to the point that she believed that her house was burning down. She complained of poor sleep and had several panic attacks a day. Dr. Burbage found her mood to be anxious and her affect to be detached, almost flat, inappropriate, and congruent with mood. The plaintiff's thought process was logical, linear, and goal directed. Her cognition was grossly intact, insight was fair/poor, judgment was poor. Dr. Burbage increased the plaintiff's dose of Seroquel and continued her other medications (Tr. 678-80). On November 19, 2017, the plaintiff reported a delusional anxiety about smelling gas and going outside because she believed her house was burning down. She reported that she was sleeping poorly and having several panic attacks a day. The plaintiff also reported that gabapentin made her agitated. Dr. Burbage prescribed an increased dose of Seroquel as well as Effexor, Minipress, Klonopin, and Neurontin (Tr. 677).
The plaintiff testified at the administrative hearing that she is unable to work due to difficulty focusing and keeping pace (Tr. 37, 40, 47). She stated that her medications were very effective, although at times she would think they were not helping and would go off of the medication and then realize that it was actually helping her (Tr. 43).
At the hearing, the vocational expert identified the plaintiff's past relevant work as an inspector/hand packager, hand trimmer, and CNA (Tr. 54-55). The ALJ asked the vocational expert the following hypothetical:
So if you would assume a hypothetical individual who does not have any exertional limitations, but whose work is limited to simple, routine, and repetitive tasks. The individual can perform these tasks for a two hour box of time with normal rest breaks during an eight hour workday; who has only occasional interaction with the public. Can an individual with these limitations perform the Claimant's past work as she performed it or as customarily performed?(Tr. 55-56). The vocational expert indicated that this hypothetical would allow the inspector/hand packager (Dictionary of Occupational Titles ("DOT") No. 559.687-074) and hand trimmer (DOT No. 781.687-070) jobs but not her job as a CNA (DOT No. 355.674-014) (Tr. 54-56). Next, the ALJ asked:
Then if you assume a hypothetical individual whose 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, workplace changes; who is capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting; the individual can perform simple tasks for a two hour box of time with normal rest breaks during an eight hour workday; who has only occasional interaction with the public, and only occasional interaction with co-workers; can an individual with these limitations perform Claimant's past work as she performed it or as customarily performed?(Tr. 56-57). The vocational expert indicated that the plaintiff's past work would be available but in reduced numbers (Tr. 57). Next, the ALJ asked about the additional limitation of, due to severe mental impairments, would be off task 20 percent or more of the workday. The vocational expert indicated that this would rule out the plaintiff's past work and all other jobs (Tr. 57-58).
The plaintiff's attorney then asked the vocational expert:
Dr. Stewart, let me give you a hypothetical. As of the alleged onset date, December of 2014, the Claimant's 30 years of age, a younger individual, past prior work as a caretaker, packer, inspector, range is from unskilled to semi-skilled, SVP of between three and four. Of note is a job history of changing jobs about twice a year. She rarely grossed minimum wage. In the past prior (phonetic) working years, she had two jobs in 2008 and grossed $6,400, in 2009 she had three jobs and grossed $5,300. She had small jobs in 2010. One job. It only earned $3,400. Another small job, I don't think it amounted to SGA, 2014, $1,500. Education. Twelve years of education. Her medical history is significant. Two suicides (sic) attempt, January of 2015 where she cut her wrists, February of 2016 where she had thoughts of hanging herself with a belt. The treatment has varied, as have the diagnoses, but the medications have always included anti-depressants, anti-anxiety agents, and usually an anti-psychotic. The last treatment in 2017, that's Exhibit 14, included Effexor, an anti-depressant; Minacresp (phonetic) for anxiety and post-traumatic stress disorder; Klonopin for anxiety; and Seroquel, an anti-psychotic. According to the individual's treating psychiatrist, Dr. Burbage, her two problems are
agoraphobia, unable to leave home without severe stress; panic attacks; post-traumatic stress disorder; flashbacks; stress; destructive decomposition; major depressive disorder, severe, with psychosis; audio hallucinations; unable to differentiate voice from reality at times; and, of course, the recent suicide attempt. That's Exhibit 12. (inaudible), Dr. Burbage responded to the following questions. How long during a workday would the Claimant need unscheduled breaks? Her answer was, "Likely many due to panic attacks". That's Exhibit 12. How often during a typical day would Claimant be off task? Her answer was, "Throughout the day". Same exhibit. Dr. Burbage opined that the individual would at least have difficulty meeting competitive standards for unskilled work due to, "Criticism of a superior, especially men, could lead to emotional de -regulation, outbursts. Change could exacerbate anxiety, panic. Patient recently attempted suicide due to inability to cope with stressors''. From all that, let us assume that Ms. Ayers would be off task at least one hour an eight hour day. Is there any work for this individual?(Tr. 58-60). The vocational expert indicated that he could not comment on the medical records, but if "someone were off task one hour a day, there's not gonna be a job that would match that" (Tr. 60). Next, the attorney asked:
She has psychosis from time to time. There is some indication that, theoretically, she could do some sort of, perhaps somewhat complicated work, but the observations are that she's off task at least an hour of work in a eight hour workday. There any jobs for her in that situation?(Tr. 63). The vocational expert indicated that there would not be any jobs (id.).
ANALYSIS
The plaintiff argues that the ALJ erred in (1) failing to properly evaluate opinion evidence from treating and examining providers and (2) failing to properly evaluate the demands of her past relevant work (doc.14 at 18-26).
Medical Opinions
The plaintiff argues that the ALJ failed to properly weigh the opinion evidence of treating physicians Drs. Myers and Burbage and consultative examiner Dr. Keith. The undersigned agrees. The regulations require that all medical opinions in a case be considered. 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. §§ 404.1527(c)(1)-(5), 416.927(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. §§ 404.1527, 416.927. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. §§ 404.1520c, 416.920c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
On June 18, 2015, Dr. Myers, who treated the plaintiff at Upstate Psychiatry, completed a physician's statement indicating that the plaintiff was "unable to work, or participate in activities to prepare for work" and that her disability was permanent. Dr. Myers stated that the plaintiff's diagnoses were bipolar affective disorder and major depressive disorder (Tr. 464-65). The ALJ stated that he gave "little weight" to the opinion of Dr. Myers because "it is not supported by the medical evidence of record (Exhibit 4F). Dr. Myers terminated claimant from his practice because of multiple prescriptions (Exhibit 8F)" (Tr. 18).
Exhibit 8F contains a letter from Dr. Myers to the plaintiff, dated November 5, 2015, in which Dr. Myers stated that he had to terminate his professional relationship with the plaintiff due to her having multiple prescriptions for controlled medications filled at multiple pharmacies, which was a crime in South Carolina. He referred the plaintiff to her local mental health department (Tr. 505).
The plaintiff argues that the ALJ's erred in failing to give specific reasons for rejecting Dr. Myers' opinion as a treating physician and instead relying on a general conclusory statement of inconsistency. The plaintiff further argues that the fact that Dr. Myers' terminated her from his practice is not a valid reason for rejecting the opinion evidence, noting that Dr. Myers' termination notice referred her to her local mental health department (doc. 14 at 25). In response, the Commissioner argues that substantial evidence supports the ALJ's assessment as the opinion was on a check-box form completed on the plaintiff's second visit, and the opinion was conclusory and inconsistent with Dr. Myers' own assessment that the plaintiff had a GAF of 65 (doc. 15 at 20) (citing Tr. 427, 464). The Commissioner further argues that the ALJ inferred that Dr. Myers' termination of his treating relationship with the plaintiff suggests that the plaintiff was seeking to obtain controlled substances rather than to improve her symptoms (id.). (citing Tr. 505). However, as argued by the plaintiff, the Commissioner's arguments are post-hoc rationalization not included in the ALJ's assessment of Dr. Myers' opinion. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.").
On March 1, 2016, Dr. Keith, a licensed counseling psychologist, performed a consultative examination of the plaintiff at the Commissioner's request and found that the plaintiff's cognitive functioning appeared to fall within the average domain; she appeared cognitively capable of completing moderately complex tasks and following moderately detailed instructions; she appeared capable of managing her money; and she may have some difficulty with concentration and maintaining a satisfactory job pace throughout the course of the day (Tr. 514-17). The ALJ stated that he gave "some weight" to Dr. Keith's examination and "used the assessment in establishing the [RFC], especially, the limitation to no fast-paced work (Exhibit 9F)" (Tr. 18).
The plaintiff argues that, while the ALJ indicated that Dr. Keith's assessment was used in assessing her RFC, the ALJ failed to reconcile the RFC assessment with Dr. Keith's opinion that she might have some difficulty with concentration and maintaining a satisfactory job pace throughout the course of the day (doc. 14 at 25) (citing Tr. 517). In response, the Commissioner argues that this was a subjective complaint that the ALJ had the discretion to credit or not based on consistency (doc. 15 at 21) (citations omitted). The undersigned agrees with this statement; however, here, the ALJ did not explain that he was crediting part of Dr. Keith's assessment and rejecting other portions, and he provided no explanation for rejecting the opinion that the plaintiff might have "some difficulty" with concentration and maintaining satisfactory job pace throughout the course of the day. Further, as argued by the plaintiff, the limitations opined by Dr. Keith are not equivalent to the limitation to no fast-paced work (doc. 14 at 25). Further, at step three of the sequential evaluation process, the ALJ found that the plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace (Tr. 16), but he failed to provide any explanation as to how this and the plaintiff's other mild and moderate mental limitations left her capable of performing the limitations included in the RFC assessment. Rather, the ALJ provided only the following conclusory statement: "The limitation to simple, routine, and repetitive tasks in a work environment free of fast-paced production requirements, . . . as well as having the capacity to complete tasks at an adequate pace with only occasional interaction with the public and co-workers is based on the claimant's affective disorder, anxiety disorder, and PTSD" (Tr. 18). See Roberts v. Saul, C.A. No. 2:19-1836-BHH-MGB, 2020 WL 4370298, at *6 (D.S.C. July 15, 2020)(stating that "our precedent makes clear that such a restriction is insufficient to account for Plaintiff's limitations in concentrating, persisting, and maintaining pace absent further explanation" (citations omitted)), R&R adopted by 2020 WL 4369646 (D.S.C. July 30, 2020).
On April 28, 2017, Dr. Burbage, who treated the plaintiff at AnMed Health Psychiatry, completed a treating physician's opinion of disability indicating that the plaintiff was disabled due to agoraphobia, PTSD, and major depressive disorder, severe with psychosis (auditory hallucinations, unable to differentiate voices from reality at times, recent suicide attempt). Dr. Burbage noted that the plaintiff was unable to leave her home without severe distress and panic and experienced flashbacks and auditory hallucinations. Dr. Burbage further stated that, if the plaintiff attempted to work, she would likely require many unscheduled breaks due to panic attacks and would be off task throughout the day. Dr. Burbage explained that criticism from supervisors (especially male) could lead to emotional dysregulation and outbursts and that change could exacerbate anxiety and panic. Dr. Burbage opined that the plaintiff had moderate limitation in her ability to understand, remember, or apply information, and marked limitation in her abilities to interact with others; to concentrate, persist, or maintain pace; and to adapt or manage oneself (Tr. 640-43). The ALJ stated that he gave "little weight" to Dr. Burbage's opinion because:
[The plaintiff's] ability to watch television and play computer games all day is totally inconsistent with this opinion. He gives her marked limitations in interacting with others, but she meets people and interacts with them in order to obtain marijuana. He gives her marked limitations in concentration, persistence, and pace, but she watches television and plays computer games all day (Exhibit 11E, 28E).(Tr. 18).
The plaintiff argues that watching television and playing computer games all day and interacting with others to obtain marijuana are not consistent with normal behavior and are not inconsistent with the limitations opined by Dr. Burbage, including requiring many unscheduled breaks due to panic attacks and being off task throughout the day (doc. 14 at 26). She further notes that Dr. Burbage's treatment notes show that she stopped trading sex for THC because therapy sessions "resonated with her" and that this behavior is not inconsistent with a moderate limitation in interacting with others (id.) (citing Tr. 654). She further notes that treatment notes show that she played games all day to "avoid thought" (id.) (citing Tr. 671). The Commissioner argues that the plaintiff presented to Dr. Burbage "with a variety of new symptoms never before noted" and that these new symptoms were inconsistent with the normal mental status findings noted throughout the record (doc. 15 at 20-21) (citing Tr. 671). The Commissioner further argues that Dr. Burbage only treated the plaintiff every four to six weeks, despite complaints of worsening symptoms, and when the plaintiff was compliant with her medications, they were effective (id. at 21). Again, the Commissioner's arguments are post-hoc rationale as the ALJ did not cite the frequency of the plaintiff's treatment or the plaintiff's non-compliance as reasons for rejecting Dr. Burbage's opinion.
"The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL 374184, at *7. Here, the undersigned finds that the ALJ "failed to provide a logical bridge between the evidence and his conclusion that [the plaintiff] was capable of the limitations included in [the RFC assessment]." Roberts, 2020 WL 4370298, at *6 (citing Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) ("[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The second component, the ALJ's logical explanation, is just as important as the other two.")). Accordingly, this matter should be remanded to the ALJ for further consideration and evaluation of the medical opinions provided by Drs. Myers, Keith, and Burbage.
Remaining Allegation of Error
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff's remaining issue as it may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir.2003) (remanding on other grounds and declining to address claimant's additional arguments). On remand, the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). Accordingly, as part of the overall reconsideration of this claim upon remand, the ALJ should also consider and address the plaintiff's allegation that he failed to properly evaluate the demands of her past relevant work.
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge September 10, 2020
Greenville, South Carolina
The attention of the parties is directed to the important notice on the following page.
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
300 East Washington Street
Greenville, South Carolina 29601
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).