Opinion
7:21-CV-54-M
09-09-2022
TALYA JANESE WILLIAMS, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-17, -20] pursuant to Fed.R.Civ.P. 12(c). Claimant Talya Janese Williams (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Claimant filed an application for a period of disability, DIB, and SSI on March 19, 2012, alleging disability beginning November 28, 2009. (R. 9, 194-203). Both claims were denied initially and upon reconsideration. (R. 73-122). A hearing before Administrative Law Judge (“ALJ”) Ronald Sweeda was held on February 28, 2014, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 43-72). On April 3, 2014, ALJ Sweeda issued a decision denying Claimant's request for benefits, (R. 6-29), and on August 3, 2015, the Appeals Council denied Claimant's request for review.
On October 13, 2015, Claimant filed a complaint in this court challenging the Commissioner's final decision denying her claims. (R. 835-37). On February 28, 2017, the court remanded the case to the Commissioner, adopting the conclusions from a memorandum and recommendation finding that the ALJ, among other things, erred in assigning no weight to a medical opinion based on the fact that the provider was not an acceptable medical source. (R. 849-69). On August 16, 2018, the Appeals Council remanded the case to an ALJ for further proceedings consistent with the court's order. (R. 876-78).
A second administrative hearing was held by ALJ Adrienne Porter on February 19, 2020, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 784-825). On March 30, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 756-782). On February 5, 2021, the Appeals Council found no reason to assume jurisdiction, that Claimant's written exceptions to the ALJ's decision did not provide a basis for changing the decision, and that the ALJ's decision complied with the court's orders. (R. 749-54). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal, standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 16 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.Albright v. Comm'r of the SSA, 174F.3d473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ failed to properly weigh the opinion evidence. Pl.'s Mem. [DE-18] at 20-28.
The page numbers referenced are those found in the CM/ECF footer rather than the document's internal page numbers where, as here, they differ.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful activity since March 19, 2012, the alleged onset date. (R. 761). Next, the ALJ determined Claimant had the following severe impairments: dextroscoliosis of the thoracic spine, mild degenerative disc changes of the thoracic spine, moderate facet degenerative joint disease of the lumbar spine, flexor tendon repair of the right hand, HIV, uncontrolled hypertension, obesity, and lymphadenitis. (R. 761-62). The ALJ also found Claimant had nonsevere impairments of hypertensive retinopathy and macular degeneration, substance abuse, depression, and anxiety. (R. 762). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 763-64). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in no limitations in understanding, remembering, or applying information; interacting with others; adapting or managing oneself; and concentrating, persisting, or maintaining pace. (R. 762-63).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform sedentary work with the following limitations:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. §§ 404.1567(a), 416.967(a); SSR 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. “Sitting” generally totals about 6 hours of an 8-hour workday. SSR 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
she must be able to alternate position to stand or walking for 1-2 minutes after every 30 minutes of sitting. She can frequently operate hand controls, handle, and finger frequently with the right hand. She can occasionally climb, balance, stoop, kneel, crouch, and crawl. She can occasionally work around unprotected heights and moving mechanical parts. Due to her various complaints of pain and fatigue, she would be limited to sustaining concentration, persistence and pace to perform simple, routine and repetitive tasks and make simple, work-related decisions.(R. 765-71). In making this assessment, the ALJ found Claimant's statements about her limitations were not entirely consistent with the medical evidence and other evidence in the record. (R. 765).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work. (R. 771). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 771-72).
V. DISCUSSION
Claimant contends that the ALJ erred by failing to assign the opinions of her treatment providers, Carla Savinon, DNP, FNP-BC and Dr. Matthew Sincock, controlling weight and that the error prejudiced Claimant at step two and in the RFC determination. Pl.'s Mem. [DE-18] at 20-28.
Claimant argues at the outset that the February 6,2017 M&R, adopted by the district judge, “substantially addressed the support that Carla Savinon and Dr. Matthew Sincock's opinions had within the record.” Pl.'s Mem. [DE-18] at 20. The undersigned disagrees with Claimant's reading of the M&R, which expressly did not opine on the merits of the opinions or consider their consistency with the other evidence of record, but rather took issue with the ALJ's failure to bridge the evidence to his conclusions regarding the weight assigned to the opinions, including assigning no weight to Savinon's opinion based solely on the fact that she was not an acceptable medical source. (R. 858-68).
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. §§ 404.1527(c), 416.927(c). In general, the AL J should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide “a detailed, longitudinal picture” of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence,” it is given controlling weight. Id. However, “[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.” Craig, 16 F.3d at 590.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). “In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand.” Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D. N.C. Sept. 24,2013) (citations omitted). However, “[a]n ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).
1. Opinion of Carla Savin on, DNP, FNP-BC
Carla Savinon, Claimant's primary care provider, is a board certified family nurse practitioner with a Doctor of Nursing degree. Thus, under the regulations governing this claim, she is not an acceptable medical source and her opinion is not entitled to controlling weight. 20 C.F.R. §§ 404.1502(a)(7), 416.902(a)(7); see Davis v. Saul, No. 5:18-CV-00292-D, 2019 WL 3934453, at *8 (E.D. N.C. July 8,2019) (explaining the opinions of “other sources” are not entitled to controlling weight), report and recommendation adopted, 2019 WL 3928645 (E.D. N.C. Aug. 19, 2019); SSR 06-03p, 2006 WL 2329939 at *2 (2006) (“only ‘acceptable medical sources' can be considered treating sources, as defined in 20 CFR 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight.”).
The case of Arakas v. Comm 'r, Soc. Sec. Admin., on which Claimant relies, applies the “treating physician rule,” which provides that a treating physician's “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by other substantial evidence in the record.” 983 F.3d 83, 107 (4th Cir. 2020). Savinon, however, is not a physician, and thus, the ALJ correctly did not apply the treating physician rule to Savinon's opinion. Furthermore, as will be discussed below, the ALJ found Savinon's opinion was contradicted by other substantial evidence in the record and consequently, it would not be entitled to controlling weight even if Arakas applied.
Notwithstanding that Savinon was not an acceptable medical source, the ALJ was required to consider Savinon's opinion using the same factors used for acceptable medical sources, and ALJs “generally should explain the weight given to opinions from [medical sources who are not acceptable medical sources] or otherwise ensure that the discussion of the evidence . . . allows a claimant or subsequent reviewer to follow the adjudicator's reasoning.” 20 C.F.R. §§ 404.1527(f), 416.927(f).
The ALJ considered and weighed Savinon's opinion as follows:
Carla Savinon, DNP, FNP-BC, submitted an opinion in January 2014. Ms. Savinon noted that the claimant had various impairments including back pain, depression, fatigue, leg pain, nausea, neck pain, and shortness of breath[,] accelerate[d] hypertension, scoliosis, degenerative disc disease, major depression, insomnia, and traumatic injury to the right hand. She opines that the claimant can lift and carry up to 5 pounds occasionally and rarely lift 10-15 pounds, but never more than 15 pounds. She also opines that the claimant must lie down for 1 hour at a time due to fatigue and pain, and she would have to lie down for 2 hours; she can sit, stand, and walk for less than 1 hour; and needs a break of 1-2 hours, occurring 2-3 times per
day to rest, lie down, or sit quietly. Despite all of these limitations, she is noted to not need an assistive device. She is also noted to have 0% use of both the right and left upper extremities for reaching, fingering, and handling. Nurse Savinon opined that the claimant's pain would interfere with attention and concentration frequently, and that the claimant would be off task more than 30% of the time and absent from work five or more days per month. Nurse Savinon indicates that the claimant is unable to work in a competitive work environment. She indicated that she based her opinions on her office notes, physical exams, lab reports, imaging, and history and medical file. However, Nurse Savinon does not support her opinions of limitations with any specific reference to the record or other statements despite given space to do so on this check-box type form. (Exhibit 2IF)
The extreme limitations in sitting, standing, walking, reaching, handling, fingering, and being off-task or absent are not consistent with Nurse Savinon's treating records of the claimant, or with the rest of the medical evidence. Specifically, the findings from the consultative examination show she had no limitations with picking up small objects, writing, or buttoning clothes (8F). Additionally, a visit from January 2014, show[s] she reported doing fairly well, she had normal gait and motor strength (26F). Similarly during a May 2014 visit she denied numbness and weakness and had normal gait, strength and range of motion (34F). An even more recent visit from January 2020 showed her extremities were normal; there was no edema or abnormal back findings (Exhibit 5OF). Just as the claimant's allegations are not supported by the medical evidence, it appears that this opinion may rely more on the claimant's reported limitations and are not fully supported in the record. While the claimant does have significant limitations - which limit her to a reduced range of sedentary work with the ability to alternate position, occasional postural movements, and frequent use of the right hand for reaching, handling, and fingering - the medical evidence does not support 0% use of the bilateral arms and hands, 23 breaks of 1 -2 hours per work day, absences in excess of 5 days/month, or more than 30% off-task behavior. Accordingly, only partial weight is given to this opinion. (Exhibit 2 IF)(R. 768-69). Claimant takes issue with the ALJ's analysis and decision to give the opinion only partial weight because Savinon (or the clinic where she practiced) was Claimant's long-time treatment provider, the objective evidence and treatment records support Savinon's opinion, and the treatment offered did not provide Claimant with meaningful relief. Pl.'s Mem. [DE-18] at 2325.
The ALJ's finding that the extreme limitations in Savinon's opinion were not consistent with her own treatment notes or other medical evidence is supported by substantial evidence.
Savinon opined in January of 2014 that Claimant can lift and carry up to five pounds occasionally, ten to fifteen pounds rarely, and never more than fifteen pounds; must lie down for one hour at a time due to fatigue and pain and do so for about two hours in an eight hour day; can sit, stand, and walk for less than one hour in an eight hour day; needs a break of one to two hours, occurring two to three times per day to rest, lie down, or sit quietly; and has 0% use of both the right and left upper extremities for reaching, fingering, and handling. (R. 604-07). A review of Savinon's treatment notes reveals some complaints of neck and back pain, but there was no indication that Claimant was functioning at an extremely limited level, no physical findings or notations that would support the extreme limitations in Savinon's opinion, and medications improved her pain and functioning. (R. 381-82, 398-401, 572-87, 589-93, 616-24, 655-69).
The ALJ specifically noted that at a visit with Savinon from January 2014, Claimant reported doing fairly well with respect to her back pain from scoliosis and degenerative disc disease, and she had normal gait and motor strength, (R. 655-58, 769), and at a May 2014 visit with a specialist at Duke for neck, low back, and leg pain due to scoliosis, Claimant denied numbness and weakness and had normal gait, strength, and range of motion. (R. 745-8, 769). An MRI of the cervical and lumbar spine revealed no evidence of cord compression, no obvious foraminal compression, and mild-moderate scoliosis, (R. 748), and at a follow up appointment the following year, it was noted that her x-rays looked stable with a significant thoracic scoliosis that measures in the mid 60s, and she may ultimately require surgery, (R. 1056). These records, while they demonstrate Claimant had scoliosis with associated pain, do not support that Claimant was as limited as Savinon opined. An opinion's consistency with the record and supportability, “particularly [with] medical signs and laboratory findings,” are appropriate factors for the ALJ to consider. 20 C.F.R. §§ 404.1527(c), 416.927(c).
The ALJ also relied on Claimant's May 31,2012 consultative examination with Dr. Gebrail, which indicated Claimant had normal gait and some slightly reduced range of motion of the cervical spine and some pain with range of motion of the right hand. Dr. Gebrail concluded that Claimant “may have difficulty with any job requiring heavy lifting, bending, pushing, pulling, stooping or twisting,” and overhead work and has minimal deficits with the right hand secondary to a previous tendon injury, but “has good grip and is able to write without difficulty” and can perform all activities of daily living independently. (R. 428-33, 769). Claimant takes issue with the fact that the ALJ only awarded Dr. Gebrail's opinion partial weight, but this does not diminish Dr. Gebrail's specific findings cited by the ALJ, that Claimant had no limitations in picking up small objects, writing, or buttoning clothes, which contradicts Savinon's opinion that Claimant could use her fingers 0% of the day for fine manipulations. Claimant also questions whether Dr. Gebrail made the Claimant write anything relevant, but counsel's bald speculation is insufficient to undermine Dr. Gebrail's finding that Claimant had a good grip and could write without difficulty.
Claimant also contends that the treatment offered did not provide any meaningful relief. See (R. 1064 - June 2015 treatment note indicating Claimant would benefit from surgical intervention but must lose weight, control her hypertension, and quit smoking; R. 1140 - June 2013 emergency department visit for back and neck pain where it was noted that Claimant was out of her pain medication; R. 1849-54 - Dec. 2019 emergency department visit for back pain due to spasms and Claimant was prescribed Flexeril). The ALJ acknowledged that Claimant continued to experience pain. (R. 766). Prior to evaluating the Savinon's opinion, the ALJ thoroughly discussed Claimant's history of scoliosis, related symptoms, and treatment records, and concluded that there were no findings to suggest Claimant could not sit, stand, or walk for the time necessary to perform sedentary work with some additional accommodations for her pain and reduced range of motion. Id. Furthermore, “the fact that Claimant can point to other evidence that supports her position does not render the ALJ's decision unsupported.” Lilley v. Saul, No. 4:19-CV-93-RJ, 2020 WL 3884429, at * 11 (E.D. N.C. July 9,2020) (citation omitted). It is not the court's role to reweigh the evidence. See Hancock v. Astrue, 661 F.3d 470, 472 (4th Cir. 2012) (“In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.”) (citation omitted).
Finally, Claimant takes issue with the ALJ's reliance on her treatment records from 2020, and the ALJ's criticism that Savinon's opinion was based more on Claimant's subjective complaints and did not make specific reference to the record or other statements to support her opinion. First, the court agrees that Claimant's 2020 treatment records are not particularly relevant given her date last insured of December 31, 2014; however, there is sufficient substantial evidence without those records to support the ALJ's decision with respect to Savinon's opinion. Second, as for the ALJ's statement that “it appears that this opinion may rely more on the claimant's reported limitations and are not fully supported in the record,” courts have found this to be an appropriate factor for consideration when evaluating a medical opinion, see Faircloth v. Saul, No. 5:20-CV-199-M, 2021 WL 1845531, at *7 (E.D. N.C. Apr. 19, 2021) (citing Schaller v. Colvin, No. 5:13-CV-334-D, 2014 WL 4537184, at *14 (E.D. N.C. Sept. 11, 2014) (noting that the ALJ properly assigned little weight to a medical opinion “because it was largely reliant on Claimant's subjective complaints”)), report and recommendation adopted, 2021 WL 1841745 (E.D. N.C. May 7, 2021), and this was only one of many reasons given by the ALJ for discounting Savinon's opinion. Third, Claimant interprets the ALJ's statement that “Nurse Savinon does not support her opinions of limitations with any specific reference to the record or other statements despite given space to do so on this check-box type form,” as the ALJ faulting Savinon for not attaching her treatment notes to the form. The court does not agree with this reading of the ALJ's statement, which addresses Savinon's failure to cite specific evidence in the medical records to support her opinion. Again, this is an appropriate factor, pursuant to 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3), for the ALJ to consider.
Accordingly, the ALJ did not err by failing to give Savinon's opinion controlling weight, and the court can trace the ALJ's reasoning, which is supported by substantial evidence.
2. The Opinion of Dr. Matthew Sincock
Dr. Sincock, an infectious disease specialist, diagnosed and began treating Claimant for HIV in July 2012. (R. 448). Claimant had a history of enlarged lymph nodes, sore throat, night sweats, and feeling uncomfortable all over, and after lymph node biopsies were negative for malignancy, Dr. Sincock diagnosed her with HIV. (R. 444-48). On January 7, 2014, Dr. Sincock completed and signed a form medical statement regarding Claimant's HIV, which noted that Savinon had provided Claimant's history. (R. 609-12).
The ALJ discussed and weighed Dr. Sincock's opinion as follows:
Dr. Sincock, the claimant['s] treating infectious disease doctor, used an HIV-specific Medical Source Statement questionnaire to provide his opinions of the claimant's functioning. He marks the symptoms as repeated episodes of severe fatigue; severe malaise; severe pain; severe nausea; severe insomnia; marked restriction in activities of daily living; and marked difficulty in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. He then circles the following limitations: she can work “none” hours per day; she can stand 15 minutes; sit 30 minutes; and lift 5 pounds occasionally, but none frequently. He then indicates under psychiatric limitations that she is “moderately impaired” in the ability to understand, remember and carry out detailed instruction and maintain attention and concentration. He notes “History as provided above by her PCP (Carla Savinon). No additional information from ID [infectious disease] standpoint.” (Exhibit 22F)
For the same reasons that Ms. Savinon's opinion (above) is only given partial weight, Dr. Sincock's opinion is given partial weight. The indications of “severe” symptoms checked off are not supported by the medical evidence. While she does
report pain, some fatigue at times, and trouble sleeping, there is little evidence of fatigue, malaise, pain, and nausea that is “severe”. The indication that she has “marked restriction of activities of daily living” and “marked difficulties” in concentration, persistence, or pace are inconsistent with the later indication that she has only moderate limitations in carrying out detailed instructions and maintaining concentration persistence or pace. Many office visits concerning her HIV show she reported doing well with no significant complaints concerning medications or significant complaints of symptoms associated with her HIV. In general, the records of office visits and examinations would indicate that she has significant, but not disabling, limitations in exertional abilities and would require work that is limited to simple, routine, repetitive tasks due to her various physical complaints.(R. 769-70). Claimant takes issue with the ALJ's failure to give Dr. Sincock's opinion controlling weight because he was Claimant's long-time treatment provider and other opinions and evidence in the record are consistent with and bolster Dr. Sincock's opinion. Pl.'s Mem. [DE-18] at 23-25.
The ALJ's finding that the limitations in Dr. Sincock's opinion were not consistent with his own treatment notes or other medical evidence is supported by substantial evidence. The form dated January 7, 2014, noted that Claimant experienced repeated episodes of severe fatigue, malaise, pain, nausea, and insomnia; marked restriction of activities of daily living; marked difficulties in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace; and nausea and vomiting. (R. 609-11). The ALJ acknowledged that Claimant reported pain, some fatigue at times, and trouble sleeping, but that there was little evidence of fatigue, malaise, pain, and nausea that is “severe,” and a review of Dr. Sincock's treatment notes supports the ALJ's finding in this regard. On July 13, 2012, after Claimant was first diagnosed with HIV, Dr. Sincock's treatment note indicates she had no complaints and her examination was normal in all respects, (R. 449-51), two weeks later it was noted she “overall feels well with no acute issues to address,” (R. 471-73), and a month later she was “doing well on therapy” and denied “new symptoms, side effects, recent missed doses, depression, or other symptoms to address today,” (R. 474-76). In February and May of 2013, Claimant was noted to be “doing well on her current regimen” without significant side effects, and Dr. Sincock also noted that Claimant's primary care provider changed her anxiety medicine with minimal to no improvement and that she would try a new medication. (R. 499-507). At follow-up appointments through the end of 2013, Claimant continued to do well on her HIV regimen, despite some medication non-compliance due to financial barriers, and her anxiety was improving. (R. 678-86). On January 8,2014, the day after the form opinion was completed, Dr. Sincock's treatment note stated that Claimant was happy with her new HIV regimen with no new side effects, and there were no anxiety problems to address. (R. 675-77). The ALJ discussed these records prior to discussing Dr. Sincock's opinion, (R. 76667), and appropriately considered them in finding Dr. Sincock's opinion not supported by his own records. See McKenzie v. Berryhill, No. 7:16-CV-00406-D, 2018 WL 1414589, at *7 (E.D. N.C. Jan. 25,2018) (finding the ALJ correctly assigned a treating physician's opinion less weight where it lacked support in its own treatment notes and the record overall), report and recommendation adopted, 2018 WL 1403604 (E.D. N.C. Mar. 20, 2018).
Claimant also contends that Dr. Sincock's opinion regarding Claimant's limitations is bolstered by the treatment notes of Dr. Rineer, Claimant's hand surgeon; a vocational rehabilitation report; and the treatment notes of Dr. Karikari, a consultative spine surgeon, all of which Claimant asserts demonstrate her conditions are severe. Pl.'s Mem. [DE-18] at 24. The ALJ agreed that Claimant's back, hand, and HIV impairments were all “severe,” (R. 761-62), and the ALJ imposed a highly restrictive RFC to account for the limitations associated with her impairments. Neither Dr. Rineer nor Dr. Karikari provided opinions that Claimant was as limited as Dr. Sincock opined, and Dr. Rineer's treatment records and Dr. Karikari's consultative note do not support Dr. Sincock's opinion that Claimant could work no hours a day. (R. 702, 714-20,1061-64). The ALJ also weighed the vocational rehabilitation report, but gave it only partial weight for several reasons that Claimant did not challenge. (R. 770). The ALJ also noted that the conclusions in the report, e.g., that Claimant was best suited to clerical work at the sedentary level, were substantially consistent with the ALJ's conclusions. Id.
Claimant next argues that the ALJ misquoted Dr. Sincock's findings and opinion regarding Claimant's mental health and cognitive functioning. Pl.'s Mem. [DE-18] at 26. Dr. Sincock indicated on a check-the-box form that Claimant had “marked restriction of activities of daily living” and “marked difficulties in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.” (R. 610) (emphasis added). Dr. Sincock also checked boxes indicating that Claimant was not significantly impaired in her ability to understand, remember and carry our very short and simple instructions and was moderately impaired (as opposed to markedly impaired) in the ability to understand, remember and carry our detailed instructions and to maintain attention and concentration. (R. 611). The ALJ determined Dr. Sincock's findings in this regard were inconsistent, (R. 769), and the court sees no error in the ALJ's description of Dr. Sincock's findings or the observation that they are inconsistent. See Jones v. Berryhill, 681 Fed.Appx. 252, 256 (4th Cir. 2017) (finding the ALJ's decision to afford little weight to an opinion was supported by substantial evidence where, among other things, the opinion appeared to contain internal inconsistencies).
Accordingly, the court can trace the ALJ's reasoning in not giving controlling weight to Dr. Sincock's opinion and to afford it partial weight, and the ALJ's decision is supported by substantial evidence.
3. Claimant's Mental Impairments
In arguing that the ALJ incorrectly weighed the opinion evidence, Claimant also contends the ALJ erroneously concluded that Claimant's mental health concerns were non-severe and that the ALJ's imposition of limitations to simple, routine, repetitive tasks and simple work-related decisions in the RFC is at odds with the non-severity finding at step two. Pl.'s Mem. [DE-18] at 25-26.
At step two the ALJ found Claimant's depression and anxiety were non-severe, explaining as follows:
The claimant also has depression and anxiety that is found non-severe. However, she has not required significant treatment. In January 2013, it appears she reported medications worked well for her depression. She appeared for a July 2013 evaluation where she complained of depression and anxiety. Mental status exam shows she had good eye contact was friendly and cooperative with unremarkable thought content. After this visit, the record does show some sporadic complaints associated with her mental impairments, but she has not required greater care and complaints are not ongoing. Specifically, in 2017, she reported providing care for her mother who was diagnosed with cancer, in addition to her own family. Even in 2019 visits show she was not working but was keeping her grandkids, which demonstrates that she not only is able to take care of herself, but also others. (Exhibits 19F, 25F, 43F, 45F, and 48F).(R. 762).
Claimant takes issue with the ALJ's finding that her ability to care for her ill mother and grandchildren demonstrated an ability not only to care for herself but to also care for others and claims the ALJ misrepresented the record. Pl.'s Mem. [DE-18] at 25. The ALJ must apply the special technique when assessing the severity of mental impairments. See 20 C.F.R. §§ 404.1520a(b)-(c), 416.920a(b)-(c). One of the four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment is adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). Thus, Claimant's ability to care for herself and others is relevant to the ALJ's consideration of the severity of her anxiety and depression. Furthermore, the court does not agree that the ALJ misrepresented the record with respect to Dr. Sincock's treatment note. Dr. Sincock stated that Claimant “had recent anxiety and difficulty sleeping with near panic attack but all is associated with her mother having recent diagnosis of gastric cancer and needing chemotherapy,” that Claimant “had to provide her care while also caring for her family,” and that Claimant was “feeling better today as her mother had chemo delayed for one week to not fall on Thanksgiving.” (R. 1801). This note, coupled with Dr. Sincock's treatment notes discussed above, support the ALJ's conclusion that Claimant's anxiety and depression were well-controlled by medication and that increases in anxiety were situational. (R. 762).
Finally, the court finds no inconsistency between the ALJ's finding that Claimant's anxiety and depression were non-severe at step two and the limitations in the RFC to performing simple, routine, and repetitive tasks and making simple work-related decisions. The ALJ explained that these limitations were necessary due to Claimant's complaints of pain and fatigue. (R. 765, 767, 770). Furthermore, diagnoses of anxiety and depression are not enough to prove disability; “[t]here must be a showing of related functional loss.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Claimant relies on Dr. Sincock's opinion to demonstrate her anxiety and depression were severe; however, as discussed above, the ALJ found the opinion to be unsupported by Dr. Sincock's treatment notes and appropriately discounted it. Claimant has failed to carry her burden of showing how her depression and anxiety negatively impacted her ability to work. Accordingly, the ALJ's determination that Claimant's mental impairments were nonsevere is supported by substantial evidence.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-17] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-20] be ALLOWED, and Commissioner's final decision be affirmed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 15, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).