Opinion
4:21-CV-60-M
08-19-2022
CHUCK WILLIS, Plaintiff/ Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-18, -24] pursuant to Fed.R.Civ.P. 12(c). Claimant Chuck Louis Willis (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. Claimant filed a Response, [DE-28], 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 allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB, and for SSI on January 16, 2017, alleging disability beginning January 1, 2013. (R. 28, 249-69). Both claims were denied initially and upon reconsideration. (R. 28, 84-152). A hearing before the Administrative Law Judge (“ALJ”) was held on December 20, 2018, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 28, 47-83). On February 21,2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 2546). On January 17, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-10 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform .. . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200,1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): 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 following errors: (1) the ALJ failed to identify and resolve a conflict between the vocational testimony and the Dictionary of Occupational Titles (“DOT”); (2) the concentration, persistence, and pace findings in the ALJ's “Paragraph B” criteria and RFC are not supported by substantial evidence; (3) the ALJ improperly rejected part of treating psychologist Dr. Griffin's opinions and erred in rejecting other parts; (4) the ALJ erred in rejecting the opinion of examining psychologist Dr. Crane; (5) the ALJ failed to consider some of Claimant's impairments; (6) the ALJ erred in rejecting the subjective statements of Claimant and Claimant's wife; and (7) the Commissioner's decision is constitutionally defective. Pl.'s Mem. [DE-19] at 15-35 ; Pl.'s Resp. [DE-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 January 1, 2013, the alleged onset date. (R. 30). Next, the ALJ determined Claimant had the following severe impairments: morbid obesity; diabetes with neuropathy; hidradenitis suppurativa; chronic obstructive pulmonary disease; hypertension; sleep apnea; GERD; borderline intellectual fiinctioning/leaming disability; anxiety disorder/panic attacks; major depressive disorder; and borderline personality disorder. Id. 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. 31-35). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 34-35).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
[H]e is limited to sedentary standing and walking, i.e. no more than 2 hours over the course of a typical 8 hour workday; occasional pushing, pulling, and/or operating foot controls with the lower extremities; frequent handling, fingering, feeling, pushing, pulling, and/or operating hand controls with the upper extremities; occasional climbing ramps and stairs; no climbing ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching, and/ or crawling; avoid concentrated exposure to temperature extremes of cold and heat, wetness and humidity, as well as concentrated exposure to pulmonary irritants, such as fumes, odors, dust, gases, poor ventilation and the like; avoid concentrated exposure to workplace hazards, such as dangerous moving machinery and unprotected heights; he can understand and perform simple, routine, repetitive tasks, and maintain concentration, persistence, and pace to stay on task for 2 hour periods over the course of a typical 8-hour day, in a low stress setting, further defined to mean no production-pace or quota-based work; rather, he requires a goal-oriented job primarily dealing with things rather than people, with no more than occasional social interaction with supervisors, co-workers, and/or the public; the claimant is functionally illiterate, which means the claimant must not be required to read or write in the performance of job duties.(R. 35-39). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence. (R. 36). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work as a heating and A/C installer, maintenance repairer, and dump truck driver. (R. 39). 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. 39-40).
V. DISCUSSION
A. Conflict between Vocational Testimony and DOT
Claimant contends that the ALJ erred in failing to identify and resolve the conflict between the vocational testimony and the DOT regarding Claimant's functional illiteracy. Pl.'s Mem. [DE-19] at 15-19; Pl.'s Resp. [DE-28] at 1-2. Claimant argues that when the vocational testimony appears to conflict with the DOT, the ALJ must inquire about the apparent conflict and get a reasonable explanation resolving it. Id. at 16. Simply asking the VE if a conflict exists is not sufficient, he contends-the ALJ “has an independent duty to identify the conflict.” Id. The Commissioner argues that the ALJ recognized that a conflict existed and resolved the apparent conflict. Def's Mem. [DE-25] at 26-27.
Pursuant to S.S.R. 00-4p, the ALJ must “inquire, on the record,... whether the vocational expert's testimony conflict[s] with the [DOT], and [the Ruling] also requires that the ALJ elicit a reasonable explanation for and resolve conflicts between the expert's testimony and the [DOT].” Pearson v. Colvin, 810 F.3d 204,207-08 (4th Cir. 2015) (internal quotation marks omitted) (citing S.S.R. 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). However, not “all possible conflicts must be identified and resolved,” but rather only “apparent conflicts,” i.e., “where the expert's testimony seems to, but does not necessarily, conflict with the [DOT].” Id. at 209. The ALJ must elicit from the VE “a reasonable explanation for the apparent conflict,” S.S.R. 00-4p, at *4, and the ALJ has not fulfilled his duty to fully develop the record if it “contains an unresolved conflict between the expert's testimony and the [DOT]” or if the ALJ “ignores an apparent conflict because the expert testified that no conflict existed,” Pearson, 810 F.3d at 210. “An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT].” Id. at 209-10.
The ALJ's RFC finding included a functional illiteracy limitation. At the hearing the ALJ included as part of the hypothetical question to the VE that “for the hypothetical, if you'll just assume the individual's functional, functionally illiterate, which is to say the individual would not be required to read or write in performance of job duties.” (R. 78). The VE identified, and the ALJ adopted at step five, the following three occupations: (1) final assembler (DOT # 713.687018), (2) polisher (DOT # 713.684-038), and (3) screener/inspector (DOT # 726.684-110). (R. 40, 79).
The ALJ asked the VE whether or not the identified jobs were consistent with the hypothetical and the DOT. (R. 79). The VE answered, “Let's see. It is, except for the questions regarding low stress, limitations on production, pace, and quota work, limited interaction with coworkers, supervisors, and the public. See what else [INAUDIBLE] [].” Id.
The ALJ then asked, “What about the literacy part of it, the functional literacy with those jobs?” The VE responded, “That is, is not specifically addressed,” . . . “by the DOT as well, and, as it applies to this job. So I would include that in the list too, and the, the combination of, of light work, but sedentary standing and walking,” ... “none of that is specifically addressed by the DOT. So that testimony's based on professional experience.” (R. 79-80).
The ALJ stated in his decision that the VE:
noted the DOT does not precisely address the mental aspects of the residual functional capacity. However, she used her training and experience in order to cite jobs consistent with the residual functional capacity. She noted the above-cited jobs would not require any reading or writing. Pursuant to SSR 00-4p, the undersigned finds the vocational expert provided a reasonable explanation for any potential discrepancy between her testimony and the information contained in the DOT and its companion publications.(R. 40). Claimant states that functional literacy is addressed by the DOT, and that the jobs identified by the VE and adopted by the ALJ are inconsistent with functional illiteracy. Pl.'s Mem. [DE-19] at 18-19. Claimant states, citing the DOT, that “[a]ll three occupations have a Verbal
Aptitude requirement of 4,” which means “the lowest third, exclusive of the bottom 10 percent of the population.” Id. at 19. But, Claimant continues, his “reading and writing skills are below the one-tenth of the first percentile, i.e. in the bottom one-thousandth of the population.” Id.
Claimant states that Polisher and Final Assembler have a Language requirement of 1, which means:
Reading: Recognize meaning of 2,500 two-or-three syllable words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers. Writing: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. Speaking: Speak simple sentences, using normal word order, and present and past tenses.Id. Screener-inspector, he also states, has a Language requirement of 2, meaning:
Reading: Passive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words per minute. Read adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation. Read instructions for assembling model cars and airplanes. Writing: Write compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs. Speaking: Speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses.Id. Claimant argues that there is evidence from treating and examining doctors, Dr. Griffin and Dr. Crane, that shows Claimant does not meet these requirements, and also that the ALJ himself included in the hypothetical question and the RFC that Claimant is “functionally illiterate.” Id.
Claimant contends that the VE did not offer a resolution to this conflict. Id.
Here, there is an apparent conflict-“the expert's testimony seems to [] conflict with the [DOT].” Pearson, 810 F.3d at 209. As outlined above, the DOT includes Verbal Aptitude and Reading requirements, despite the VE's testimony that the DOT did not address literacy for these jobs. An ALJ must independently identify conflicts between the VE's testimony and the DOT and therefore cannot simply rely on the VE's testimony that no conflict exists when one in fact does. Id. at 208-09 (“The ALJ independently must identify conflicts between the expert's testimony and the Dictionary.”); see also id. at 210 (“An ALJ has not fully developed the record if it contains an unresolved conflict between the expert's testimony and the Dictionary. Nor has the ALJ fulfilled this duty if he ignores an apparent conflict because the expert testified that no conflict existed.”).
In response to the ALJ's question asking if the occupations were consistent with functional illiteracy, the VE answered, “[t]hat is, is not specifically addressed,” ... “by the DOT as well, and, as it applies to this job. So I would include that in the list too, and the, the combination of, of light work, but sedentary standing and walking,” ... “none of that is specifically addressed by the DOT. So that testimony's based on professional experience.” (R. 79-80). There was no further discussion of any literacy requirements with the VE.
In Pearson, the VE testified that the claimant was not disabled because he could perform three occupations that existed in sufficient numbers in the national economy. Pearson, 810 F.3d at 210. For each of those occupations, the DOT listed frequent reaching as a requirement. Id. The ALJ found that the claimant, however, could only frequently reach overhead with one arm. The DOT defines “reaching” as “[e]xtending hand(s) and arm(s) in any direction” and does not specify whether these occupations require only overhead or lateral reaching. Id. (citing App. C, U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles 1993). Accordingly, the Fourth Circuit concluded that an apparent conflict existed between the VE's testimony that the claimant could perform these jobs and the DOT, which indicated that perhaps he could not. The court held that:
[I]t is the purview of the ALJ to elicit an explanation from the expert as to whether these occupations do, in fact, require frequent bilateral overhead reaching. If the explanation does not provide a reasonable basis for relying on the expert's
testimony, that testimony cannot provide substantial evidence for a denial of benefits. If the expert's explanation is reasonable, the ALJ can resolve the apparent conflict with the Dictionary and rely on the expert's testimony.810 F.3d at 211. The ALJ's failure to do so in Pearson was error requiring remand. The court cautioned that finding an apparent conflict between the VE's testimony and the DOT did not necessarily mean that the claimant or a similarly-situated person was disabled. “Rather, it simply means that the ALJ and the expert should address exactly what form of reaching the stated occupations require and whether the claimant can fulfill those requirements.” Id.
On the other hand, in Mullen v. Saul, the court held that the ALJ did not err when the VE offered a reasonable explanation for the discrepancy, and the ALJ adequately discussed it in his decision. No. 2:18-CV-44-D, 2019 WL 3995982, at *5 (E.D. N.C. July 22, 2019), report and recommendation adopted, 2019 WL 3995978 (E.D. N.C. Aug. 21, 2019). There, the VE said that her testimony was not consistent with the DOT but correctly stated that the DOT did not contain information regarding walking and standing for two hours and that her testimony was based on her education, training, knowledge, and experience placing people in jobs, and the ALJ wrote in his decision that the VE testimony was inconsistent with the DOT due to lack of information in the DOT but the VE relied on her own experience.
Here, the ALJ did state in his opinion that the VE based her testimony on her professional experience. (R. 40). However, unlike in Mullen, the ALJ did not elicit and the VE did not offer a reasonable explanation for the discrepancy between the RFC's functional illiteracy limitation and the requirements for the jobs identified in the DOT. In response to Defendant's argument, the court draws a distinction between a function not being addressed by the DOT, as the ALJ and VE erroneously believed, and the VE offering testimony that contradicts the DOT without explanation. Here, the ALJ did not elicit testimony regarding the VE's opinion on the requisite level of literacy for the jobs the VE identified, for example asking whether the jobs identified required reading and writing for completion. See Daryl B. v. Saul, No. 3:19CV280 (DJN), 2020 WL 1471690, at *12 (E.D. Va. Mar. 26, 2020) (ruling that the ALJ sufficiently accounted for and addressed apparent conflict between Plaintiff's potential illiteracy and the DOT). In Daryl, the court ruled the ALJ properly elicited testimony from the VE by asking the VE if the “occupations you identified require reading and writing for completion,” to which the VE answered in the negative, and “by explicitly asking the VE about the basis for his opinion on the requisite level of literacy for the identified jobs,” to which the VE answered his opinion was based on his experience and training. Id. Here, the ALJ did not ask the VE regarding the functions of reading and writing in the identified jobs.
The ALJ's reliance on the VE's testimony to determine disability without resolving the apparent conflict in the record is error requiring remand. See Jackson v. Berryhill, No. 1:16CV1162,2017 WL 3278903, at *8-12 (M.D. N.C. 1 Aug. 2017) (recommending remand where “the ALJ failed to comply with SSR 00-4p and Pearson by neglecting to identify and resolve the apparent conflict between the [vocational expert's] testimony that an individual limited to occasional overhead reaching bilaterally could perform the jobs of Mail Clerk and Office Helper ..., and the DOT's description of those jobs as entailing frequent reaching”); see Springer v. Berryhill, 2017 WL 3447920, at *14 (N.D. W.Va. July 25, 2017) (holding that the ALJ's failure to resolve the apparent conflict between the VE's testimony and the DOT is not harmless error where the issue is outcome-determinative at step four). Accordingly, the ALJ erred in failing to resolve the conflict and explain how Claimant could perform the jobs of final assembler (DOT # 713.687-018), polisher (DOT # 713.684-038), and screener/inspector (DOT # 726.684-110) despite the limitation of functional illiteracy.
B. Concentration, Persistence, and Pace Findings in “Paragraph B” Criteria and RFC
Claimant next contends that the concentration, persistence, and pace findings in the ALJ's “paragraph B criteria” and the RFC are not supported by substantial evidence. Pl.'s Mem. [DE-19] at 20-23. Claimant argues that the ALJ did not reconcile the “moderate” limitation finding with evidence showing that Claimant's inattentiveness is above the 99th percentile and his ability to maintain concentration, persistence, and pace is severely, not moderately, impaired. Id. at 20. Defendant contends, on the other hand, that the ALJ's mental RFC findings are properly supported by substantial evidence. Def.'s Mem. [DE-25] at 18-23.
The mental impairment listing's “B criteria” assess how the claimant's mental disorders limit functioning measured in four functional areas: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00A.2.b. The paragraph B criteria, also known as the adaptive functioning criteria, are satisfied by an extreme limitation of one, or marked limitation of two, of the four functional areas. Id. § 12.04B. A “mild limitation” means functioning is “slightly limited,” a “moderate limitation” means functioning is “fair,” a “marked limitation” means functioning is “seriously limited,” and an “extreme limitation” means an inability to function. Id. § 12.OOF.
The ALJ determined that Claimant had moderate limitations in concentrating, persisting, or maintaining pace. (R. 34). The ALJ noted that Claimant has Attention Deficit Hyperactivity Disorder (“ADHD”), that on a mental status examination, “inattention was noted to be a significant problem (Exhibit 5F),” and that “the claimant's wife reports he rarely completes tasks (Exhibit 8E).” Id. However, the ALJ concluded “that the overall record fails to show the claimant has worse than a moderate limitation with regard to concentrating, persisting, or maintaining pace.” Id. Claimant contends the ALJ erred in discussing his ability to maintain concentration, persistence, and pace to stay on task for 2-hour periods over the course of a typical 8-hour day because Claimant's inattention was in the “worse-than-99th-percentile,” as shown through testing performed by Dr. Griffin. Pl.'s Mem. [DE-19] at 20-23; see (R. 561). Claimant argues that this cannot be described as “moderate.” Pl.'s Mem. [DE-19] at 23.
Defendant maintains that the record supports that treatment was effective overall and that the ALJ considered Dr. Griffin's diagnosis testing. Def.'s Mem. [DE-25] at 22. Defendant points to later in the ALJ's decision, where the ALJ discussed the Claimant's RFC and mental impairments, including a March 2017 psychological consultative examination report of Dr. Edward Crane, (R. 471-76), an August 2017 psychological evaluation conducted by Dr. Griffin, (R. 556-63), and a May 2018 examination report of Dr. Stanton Smith, (R. 583-84). Def.'s Mem. [DE-25] at 21; (R. 37-38).
Here, the ALJ did briefly note Claimant's inattention and specifically the report of Dr. Griffin. (R. 37, 556-63, 616-17). However, the ALJ did not specifically discuss the material, conflicting evidence that Claimant's inattention was in the “worse-than-99th-percentile. That the ALJ also noted that later reports showing Claimant's mental symptoms were reasonably controlled was not sufficient and not necessarily relevant to Claimant's inattention.
The ALJ considered Dr. Crane's diagnosing Claimant with borderline intellectual functioning, anxiety disorder, and panic disorder. (R. 37, -471-76). The ALJ noted Dr. Crane's examination, where Claimant reported a history of depression and anxiety, indicated worsening panic attacks and depression, and reported social isolation, difficulty sleeping, difficulty concentrating, and racing thoughts. (R. 37). The ALJ stated, however, that on mental status examination, Claimant was alert, oriented times three, and generally cooperative, his thought processes were coherent and goal-directed, he denied suicidal/homicidal ideation, and his full scale IQ score was assessed at 72 on the Wechsler Adult Intelligence Scale-IV, noting that this was in the borderline range of intelligence. Id.
The ALJ also discussed the August 2017 psychological evaluation of Dr. James Griffin. Id. He noted that Griffin diagnosed Claimant with generalized anxiety disorder, panic disorder, ADHD, persistent depressive disorder, and learning disorder, and that Griffin recommended medication management and therapy. (R. 37, 556-63, 616-17). The ALJ explicitly noted that inattention/memory, depressed mood, anxiety/worry, diminished interest, and physical fatigue were noted as “significant to very significant problems.” (R. 37).
However, the ALJ also noted and considered the February, May, September, and November 2018 examination reports of Dr. Stanton Smith, which were after Dr. Griffin's evaluation. (R. 37, 577-84). The ALJ stated that Smith indicated that Claimant's social anxiety began around kindergarten when he was bullied for not being able to read, and that Claimant's reading currently was at a first-grade level. (R. 37). Although Claimant was depressed, his mental status examination showed his thinking and orientation were normal, and his insight, judgment, and memory were normal. Id. The ALJ stated that Claimant was prescribed medication and therapy, and treatment notes from May 2018 indicated Claimant's reporting his depression was better, that his mood was stable, and that he was continued on the medication regimen. (R. 37-38, 618). The ALJ pointed out that in September 2018 Claimant reported waxing and waning symptoms, but Claimant remained on the medication regimen. (R. 38, 638).
Here, the ALJ did not adequately consider Claimant's mental limitations, including the diagnostic report of Dr. Griffin. While the ALJ noted that Claimant's mental symptoms were indicated to be improving or stable, and that Claimant was continued on medication management and therapy, (R. 38), the ALJ never explicitly discussed Claimant's inattention, and the ALJ's failure to discuss conflicting material evidence frustrates meaningful review of this finding. Drotar v. Colvin, No. 7:13-CV-265-FL, 2015 WL 965626, at *3 (E.D. N.C. Mar. 4, 2015) (citing Ivey v. Barnhart, 393 F.Supp.2d 387, 390 (E.D. N.C. 2005)). “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Further, “[t]he ALJ's failure to ‘build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error.” Id. at 868 (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). According, the ALJ erred in his “paragraph B” and mental REC finding.
C. Medical Opinions of Dr. Griffin and Dr. Crane
Claimant argues that the ALJ erred in his treatment of medical opinions of Dr. Griffin and Dr. Crane. Pl.'s Mem. [DE-19] at 23-32.
1. Dr. Griffin
Claimant contends that the ALJ improperly rejected or disregarded parts of Dr. Griffin's opinions. Id. at 23. In particular, Claimant states that the ALJ erred in not acknowledging Dr. Griffin's opinion that Claimant “is clearly incapable of being employed,” (R. 563), and in giving “little weight” to Dr. Griffin's statements that Claimant “should be considered for disability compensation,” and “should apply for disability.” Pl.'s Mem. [DE-19] at 26. Claimant acknowledges that the ALJ was correct that “statements concerning the ultimate issue of disability” are reserved for the Commissioner, and as such cannot be given controlling weight. However, Claimant argues, it is not proper for the ALJ to summarily and dispositively reject those opinions. Id. Further, remand is proper Claimant states, because the ALJ did not analyze Dr. Griffin's opinion with the “six factor analysis.” Id. at 27. Defendant contends that the ALJ properly noted that opinions on issues reserved to the commissioner, such as disability and employability, can never be entitled to controlling weight. Def.'s Mem. [DE-25] at 22.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. §§ 404.1527(c), 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide “a detailed, longitudinal picture” of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2). 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, 76 F.3d at 590.
20 C.F.R. §404.1527 applies to this claim filed prior to March 27,2017.
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)).
“The judgment regarding the extent to which an individual is able to perform exertional ranges of work goes beyond medical judgment regarding what an individual can still do and is a finding that may be dispositive of the issue of disability. . . . [T]he overall RFC assessment is an administrative finding on an issue reserved to the Commissioner.” S.S.R. 96-5p, 1996 WL 374183, at *5 (July 2, 1996); see Slaydon v. Saul, No. 7:18-CV-54-FL, 2019 WL 3660573, at *5 (E.D. N.C. Aug. 6, 2019). “Medical source opinions on issues reserved to the Commissioner are not entitled to any weight.” Watson v. Berryhill, No. 5:17-CV-579-RJ, 2018 WL 6600209, at *1 (E.D. N.C. Dec. 17, 2018).
Here, the ALJ explained,
Dr. Griffin opined the claimant should be considered for disability compensation due to his numerous health and psychological diagnoses (Exhibit 5F). He also noted he told the claimant he should apply for disability because of his conditions, which included, in part, his learning disability and his weight (Exhibit 10F). The undersigned has accorded little weight to these opinions because they fail to offer a functional assessment and/or provide any specific basis for his disability in accordance with the requirements for sequential analysis. Dr. Griffin essentially made statements concerning the ultimate issue of disability, which is reserved to the Commissioner. More importantly, the weight of the evidence of record fails to
support his conclusions. He did note the claimant's weight was problematic, even though he does not treat the claimant for any physical issues. The undersigned has considered the claimant's [sic] for its overall impact on his ability to function, which is reflected in the residual functional capacity (Finding #5).(R. 38-39). Dr. Griffin, a licensed psychologist, had recommended in August 2017 that Claimant be prescribed medication for depression and ADHD, as Claimant had generalized anxiety, panic episodes, and his ADHD symptoms were a “significant impediment to his functioning.” (R. 563). Griffin further recommended that Claimant consult with a surgeon regarding weight loss, and that he be involved in counseling to manage his physical and psychological symptoms. Id. Finally, Griffin stated, “[i]t is recommended that Mr. Willis be considered for disability compensation. He is clearly incapable of being employed given his numerous health problems and his psychological diagnoses and the symptoms associated with those diagnoses.” Id.
Here, the ALJ did not summarily reject Griffin's opinion regarding employability, and offered sufficient reasoning to discount it. The ALJ properly gave “little weight” to Dr. Griffin's opinion that Claimant should be considered for disability compensation due to numerous health and psychological diagnoses, stating that the opinions failed to offer a functional assessment and/or provide a specific basis for disability. (R. 38). See Slaydon, 2019 WL 3660573, at *5; 20 C.F.R. 404.1527(c)(3), 416.927(c)(3).
The opinion that Claimant is incapable of being employed is an issue reserved to the Commissioner. Id. (“Medical source opinions on issues reserved to the Commissioner are not entitled to any weight.”). Further, the ALJ still noted that the weight of the evidence in the record does not support Griffin's conclusion, and that Griffin did not treat Claimant for physical issues. (R. 38-39). The ALJ considered several relevant factors, e.g., supportability, consistency, and treatment relationship, in evaluating the medical opinion, and cited substantial evidence in support of his determination. See Dunn, 607 Fed.Appx. at 267. Again, “[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.” Id. (quoting Scivally, 966 F.2d at 1077). Accordingly, the ALJ did not err in his giving little weight to Dr. Griffin's opinion regarding disability.
2. Dr. Crane
Claimant likewise contends that the ALJ erred in giving “partial weight” to the opinion of Dr. Crane. Pl.'s Mem. [DE-19] at 29-32; see (R. 476). The ALJ erred, Claimant argues, because he “failed to use the mandatory six-factor analysis,” he improperly stated that Crane's limitations for Claimant were “vague and not clearly defined, such as severe,” and he “substituted his own lay opinion for a medical expert's when assessing the significance of clinical findings.” Id. at 29-31. Defendant argues that the ALJ properly considered Crane's opinion and gave it partial weight because “the limitations are vague and not clearly defined as ‘severe,'” as vagueness is a permissible ground to discount a medical opinion and Crane's opinion was vague in duration and severity. Def.'s Mem. [DE-25] at 23.
Here, the ALJ explained,
Dr. Crane opined the claimant could perform simple, routine, repetitive tasks with severe impairment in his capacity to interact with others, as well as respond to supervisors, peers, and coworkers. Dr. Crane further opined the claimant's capacity for concentration, persistence, and pace was felt to be consistent with his intellectual ability in the borderline to low average range, depending on the areas being measured (Exhibit 3F). The undersigned gives partial weight to this opinion. It was based on a one-time psychological examination of the claimant. It is generally consistent with the record, but the limitations are vague and not clearly defined, such as “severe.”(R. 38). Crane, also a licensed psychologist, conducted a psychological evaluation of Claimant on March 21, 2017. Dr. Crane concluded that Claimant could do simple, routine, repetitive tasks, but
“at present there is a severe impairment in his capacity to interact with others, respond to supervision, peers and coworkers secondary to his anxiety and a tendency to restrict his activities.” (R. 476). Crane, as the ALJ notes, also mentions Claimant's capacity for concentration, persistence, and pace being consistent with his intellectual ability. Id. Crane further recommended that Claimant continue to receive health care as a recommended by health care providers. Id.
Here, the ALJ discounted Crane's opinion and granted it partial weight, stating that while generally consistent with the record, it was a one-time psychological examination, and because the limitations were vague and not clearly defined. The court can trace the ALJ's reasoning in finding Dr. Crane's opinion not as persuasive because it was vague and speculative regarding what he meant by “severe,” and the court has previously held that an ALJ did not err in giving a medical opinion partial weight for these reasons. See Lamb v. Saul, No. 2:19-CV-26-FL, 2020 WL 6391097, at *4 (E.D. N.C. July 6, 2020), report and recommendation adopted, 2020 WL 4784699 (E.D. N.C. Aug. 18, 2020); Vanderpool v. Berryhill, No. 5:18-CV-44-RJ, 2019 WL 118414, at *5 (E.D. N.C. Jan. 7, 2019). Further, the ALJ noted that Crane evaluated Claimant on only one occasion. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (explaining that 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). Again, the ALJ considered several relevant factors, e.g., supportability, consistency, and treatment relationship, in evaluating the medical opinion, articulated the weight of the opinions in conformity with the governing regulation, and cited substantial evidence in support of his determination. See Dunn, 607 Fed.Appx. at 267. Accordingly, the ALJ did not err in his giving “partial” weight to Dr. Griffin's opinion.
D. ALJ's analysis of all of Claimant's Medical Impairments
Claimant contends that the ALJ failed to consider some of Claimant's impairments. Pl.'s Mem. [DE-27] at 32-33. Specifically, Claimant argues that the ALJ failed to assess four impairments-three lumbosacral spine impairments, and Claimant's irritable bowel syndrome (“IBS”). Id. Defendant argues that the ALJ properly considered Claimant's severe and non-severe impairments in assessing Claimant's RFC. Def.'s Mem. [DE-25] at 24-25. The ALJ, Defendant states, considered Claimant's “chronic pain” allegations, and further explicitly noted Claimant's laparoscopic cholecystectomy and GERD diagnosis, which share symptoms with IBS. Id. at 24 (citing (R. 30-31, 36)).
At step two of the sequential evaluation process, the claimant bears the burden of demonstrating a severe, medically determinable impairment that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. §§ 404.1509, 404.1520. The Act describes “a physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The regulations further require that physical or mental impairments must be medically determinable, meaning that they “established by objective medical evidence from an acceptable medical source.” 20 C.F.R. §§ 404.1521,416.924. An impairment is “severe” unless it “has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984); see also 20 C.F.R. §§ 404.1522, 416.923 (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”). As such, the “severity standard is a slight one.” Stemple v. Astrue, 475 F.Supp.2d 527, 536 (D. Md. 2007); see also McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (describing the burden of proving the severity of an impairment as “mild” and stating “only claims based on the most trivial impairments” are rejected).
Here, Claimant first contends that the ALJ did not acknowledge three lumbosacral spine impairments, established by two CT scans-bilateral L5 pars defects (vertebral stress fractures), L5-S1 degenerative disc disease with disc space narrowing and vacuum phenomenon, and anterolisthesis (retrolisthesis) of L5 on SI. Pl.'s Mem. [DE-19] at 32 (citing (R. 456, 469)). Further, Claimant states, evidence shows Claimant repeatedly reported back pain. Id. (citing (R. 462, 472, 483, 488-89, 497, 500-01, 505, 512-13, 517, 533-34, 541-42)). Claimant secondly argues that the ALJ did not acknowledge Claimant's frequently diagnosed IBS, which was a reason he applied for disability. Id. at 33 (citing (R. 288, 478-89, 564, 571, 573, 575-76, 586-616, 620, 623, 640)).
An ALJ's omission of a severe impairment at step two does not, without more, require remand. “As long as the ALJ determines that the claimant has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific impairment as severe at step two is harmless.” Flowers v. Saul, No. 7:18-CV-00183-FL, 2020 WL 522015, at *3 (E.D. N.C. Jan. 9, 2020) (quoting McClain v. Colvin, No. L12-CV-1374, 2014 WL 2167832, at *4 (M.D. N.C. May 23,2014)), report and recommendation adopted, 2020 WL 520895 (E.D. N.C. Jan. 31, 2020)); see Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009) (finding no reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the ALJ considers that impairment in subsequent steps). The burden of proof and production during the second step rests on the claimant. Pass, 65 F.3d at 1203.
Here, the ALJ found Claimant has the severe impairment of GERD, among other severe impairments. (R. 30). He noted Claimant's laparoscopic cholecystectomy and GERD again in his RFC discussion. (R. 36, 423, 616). Claimant's IBS diagnosis is noted in Exhibit 1 OF. (R. 616). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm 'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). Additionally, the ALJ also considered and noted “chronic pain” referenced in the record, but stated that “pain is a symptom, not a medically determinable impairment.” (R. 30-31) (citing (R. 639-41). The ALJ's opinion cites to Exhibit 2F, which notes L5-S1 degenerative disc disease with disc space narrowing and vacuum phenomenon, and anterolisthesis, (R. 456), and notes bilateral L5 pars defects and grade 1 anterolisthesis at ¶ 5-S1, (R. 469). However, the ALJ does not seem to have sufficiently discussed the three lumbosacral spine impairments, established by two CT scans, and IBS. As the undersigned is already recommending remand above, the ALJ should give appropriate consideration to these impairments on remand.
E. Subjective Statements and Reports of Claimant and Claimant's Wife
Claimant contends that the ALJ erred in his treatment of the subjective statements or reports of Claimant and his wife. Pl.'s Mem. [DE-19] at 33-34. Defendant contends that the ALJ properly found Claimant's and Claimant's wife's statements to be inconsistent with the medical evidence, that the ALJ complied with the regulations, and that in essence Claimant is seeking for the court to reweigh the evidence. Def.'s Mem. [DE-25] at 25-26.
Federal regulations 20 C.F.R. §§ 404.1529(a) and 416.929(a) provide the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work,” Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. SSR 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595- 96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
1. Claimant's Statements
The ALJ recounted Claimant's hearing testimony as follows:
The claimant alleges he is unable to work due to COPD with shortness of breath and chest pain, hypertension with headaches and blurred vision, diabetes with neuropathy and balance issues, obesity, chronic lesions/growths, sleep apnea, anxiety with twice a month panic attacks and social isolation, depression with loss of interest in most activities and difficulty concentrating, and a learning disability. He indicates he is prescribed multiple medications that cause dizziness and dry mouth. The claimant further reports he cannot read and took special educations
classes throughout school.(R. 36). The ALJ stated that he found “the claimant's medically determinable impairments would reasonably be expected to cause the alleged symptoms; however the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not persuasive of disability based upon the longitudinal [sic] the medical and other evidence in the record.” Id. The ALJ further stated, “[a]s for the claimant's statements about the intensity, persistence, and limiting effects of his or her symptoms, they are inconsistent.” Id.
Claimant argues that the ALJ's discounting Claimant's statements about his symptoms as inconsistent based on the “longitudinal,” “medical and other evidence” is vague. Pl.'s Mem. [DE-19] at 34. Claimant contends that the ALJ did not build and accurate and logical bridge from the evidence to the conclusion that Claimant's statements were not credible. Id. Claimant states that the ALJ did not explain which parts of the statements he credited and which parts he rejected.
The ALJ discussed Claimant's managing hypertension and diabetes with medication from 2013-17, citing Exhibits 4F and 6F. (R. 36). The ALJ noted Claimant's recurrent cysts with abscess and hidradentis suppurativa diagnosis, his being prescribed topical soap and ointment, citing Exhibit 4F/38. He also noted Claimant's biliary dyskinesia, that Claimant underwent a laparoscopic cholecystectomy, and that Claimant was diagnosed with GERD, citing Exhibits 2F/23, 1F/16, and 10F. Id.
The ALJ noted Claimant's COPD, obstructive sleep apnea, diabetic neuropathy, and hidradentis suppurativa. (R. 36-37). The ALJ stated that Claimant was observed to not have balance or coordination problems. Id. The ALJ discussed Claimant's blood sugar, noting that in September 2017 his blood sugar was uncontrolled, but in October 2018 Claimant's blood pressure was stated have excellent blood pressure control and his blood sugar continued to improve, and he was continued on medication. (R. 37).
The ALJ lengthily discussed Claimant's mental impairments, as described above. (R. 3738). The ALJ included “functional illiteracy” in the RFC. The ALJ stated that notes from May 2018 indicated Claimant's depression was improving, his mood was stable, and that he was recommended to continue medication management and therapy, while the ALJ noted that Claimant reported that his symptoms waxed and waned, citing Exhibits HF, 14F, 16F/4-5. (R. 38).
The ALJ did not cherry pick facts but rather weighed the contradictory evidence in the record, as is his responsibility, and Claimant has pointed to no specific treatment record, or evidence therein, that the ALJ failed to consider, effectively asking the court to reweigh the evidence. See Hancock v. Astrue, 667 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). Accordingly, the ALJ did not err in evaluating Claimant's subjective statements regarding his limitations
2. Third Party Reports of Claimant's Wife
Regarding Claimant's wife's reports, the ALJ stated that,
The undersigned considered the third-party statements submitted on behalf of the claimant by his wife, Nannie Willis (Exhibits 8E, 13E, and 14E). Although this witness's statements are based on direct observation of/interaction with the claimant by a layperson, she is inherently biased due to the nature of her relationship with the claimant. Rather, the undersigned finds the weight of the medical and other evidence of record is more probative of the claimant's residual functional capacity, as discussed herein.(R. 39). Claimant contends that the ALJ improperly assumed bias on the part of Claimant's wife, Nannie Willis, simply based on the nature that their husband-wife relationship. Pl.'s Mem. [DE-19] at 33. Claimant argues that were the ALJ allowed to assume all spouses were biased, the part of SSR 16-3p regarding personal observations of family and friends would be negated. Id. at 33 34. Claimant states that the ALJ did not explain which parts of the statements he credited and which parts he rejected. Defendant argues that the ALJ properly evaluated Claimant's wife's statements per SSR 06-03p, regarding considering evidence from “non-medical sources” such as a spouse, where it is appropriate to consider the nature of the relationship, consistency, and other factors. Def.'s Mem. [DE-25] at 25.
Ms. Willis reported that everyday activities are a struggle for Claimant-that, for instance, he largely stays in his recliner; that he is not able to stand very long and mostly watches television; that he no longer goes hunting, fishing, or camping like he used to; that he often stays in the house due to “social anxiety,” has panic attacks and is often fearful; that he has chronic pain and often cannot sleep; that Ms. Willis bathes Claimant after Claimant fell bathing on his own; that Ms. Willis often has to remind Claimant to take medications, remember appointments; that Claimant struggles to pay attention for more than 30 minutes; and that Claimant is illiterate. (R. 335-42, 389-92).
Here, as discussed above regarding Claimant's statements, the ALJ properly considered the “nature and extent of the relationship” and “whether the evidence was consistent with other evidence,” per SSR 16-3p, 2016 WL 1119029, at *7, and SSR 06-03P, 2006 WL 2329939. While the ALJ cannot simply reject the third-party's statement based on their not being a neutral party, the ALJ can still determine that other evidence in the record is more probative and the report inconsistent. Massey v. Colvin, No. 5:13-CV-459-D, 2014 WL 3845146, at *7 (E.D. N.C. June 17, 2014), report and recommendation adopted, 2014 WL 3845151 (E.D. N.C. Aug. 5, 2014) (“The mere fact that a family member is not a neutral party is an insufficient reason to reject her statements.”) (citing Nance v. Astrue, No. 7:1 O-CV-218-FL, 2011 WL 4899754, at *11 (E.D. N.C. Sept. 20,2011), report and recommendation adopted, 2011 WL 4888868 (E.D. N.C. Oct. 12,2011)).
Here, ALJ properly noted that Claimant's wife was a lay person, as opposed to a medical professional, was not disinterested as Claimant's spouse, and concluded that the weight of the evidence in the record is more probative of Claimant's RFC, as discussed. (R. 39); see Schaller v. Colvin, No. 5:13-CV-334-D, 2014 WL 4537184, at *12 (E.D. N.C. Sept. 11, 2014) (ruling that the ALJ properly assigned less weight to a third-party report of Claimant's mother because (1) Claimant's mother lacked medical training, (2) Claimant's mother was not likely disinterested, and (3) the report was inconsistent with ALJ's findings regarding Claimant's range of activities). Further, again, Claimant has pointed to no specific treatment record, or evidence therein, that the ALJ failed to consider, effectively asking the court to reweigh the evidence.
Accordingly, the ALJ did not err in evaluating Claimant's subjective statements regarding his limitations or in evaluating the reports of Claimant's wife.
F. Constitutional Argument
Claimant contends that the Commissioner's decision in this case is constitutionally defective as violative of the separation of powers because Commissioner Saul was not removable at will at the time of the ALJ's decision, and even if he had been, he had no authority to review the ALJ's decision. Pl.' s Mem. [DE-19] at 35 (citing United States v. Arthrex, Inc., 141 S.Ct. 1970 (2021)). Defendant concedes that the removal restriction violates the separation of powers to the extent it is construed as limiting the President's authority to remove the Commissioner without cause but contends that Claimant is entitled to no relief because, among other things, he cannot show the restriction actually caused him harm. Def.' s Mem. [DE-25] at 7-18 (citing Collins v. Yellin, 141 S.Ct. 1761 (2021)).
In Seila Law, the Court held that Congress may not limit the President's removal authority “when it comes to principal officers who, acting alone, wield significant executive power.” 140 S.Ct. at 2211. In Collins, the Court applied Seila Law to hold that the Federal Housing Finance Agency's structure violated the Constitution. 141 S.Ct. at 1783. However, in addressing the appropriate remedy, the Court distinguished a constitutionally defective appointment from a removal, explaining that
[a]lthough the statute unconstitutionally limited the President's authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void.Id. at 1787. The Court did not foreclose that a showing of harm could be made and provided as examples a President attempting to remove a director but being blocked from doing so by a court for failure to show cause, or a President making a public statement expressing displeasure with actions taken by a director and asserting he would remove the director absent the removal restriction. Id. at 1788-89.
Claimant's apparent argument-that an unconstitutional delegation of authority from Commissioner Saul to the ALJ demonstrates harm-lacks merit under Collins. See Harris v. Kijakazi, No. 21-1853, 2022 WL 2987928, at *3 (4th Cir. July 28, 2022) (rejecting constitutional claim based on Seila Law where the claimant failed to demonstrate actual harm). Claimant theorizes a general harm rather than one “particularized to Claimant,” Kaufmann, 32 F.4th at 850, and courts have found such generalized harms to be insufficient under Collins. See Dixon v. Kijakazi, No. 4:21-CV-00033-M, 2022 WL 1096424, at *9 (E.D. N.C. Feb. 1, 2022) (finding insufficient showing of harm under Collins based on Claimant's argument that the removal provision deprived the Commissioner of the power to take official acts and thus he had no decision making authority to delegate), report and recommendation adopted, 2022 WL 1096844 (E.D. N.C. Apr. 12, 2022); Reilly v. Kijakazi, No. 7:20-CV-237-D, 2022 WL 3206179, at *5 (E.D. N.C. Jul. 19, 2022), report and recommendation adopted, 2022 WL 3162343 (E.D. N.C. Aug. 8, 2022); Stephens v. Comm' r of Soc. Sec., 1:20-CV-00320-WCM, 2022 WL 628540 at *4-6 (W.D. N.C. Mar. 3, 2022) (citing Helms v. Comm'r of Sec. Sec., No. 3:20-CV-589-MOC, 2021 WL 5710096 (W.D. N.C. Dec. 1, 2021)); Stubbs v. Kijakazi, No. 6:20-3606-MGL-KFM, 2022 WL 557479, at *3-4 (D.S.C. Feb. 24, 2022) (“Courts in the Fourth Circuit are in one accord that the allegedly unconstitutional nature of § 902(a)(3), standing alone, is an insufficient basis to require remand.”) (citing Pepper v. Kijakazi, No. 6:20-CV-4159-CMC, 2022 WL 391577 (D.S.C. Feb. 9, 2022); Helms, 2021 WL 5710096; Robinson v. Kijakazi, No. 1:20-CV-00358-KDB, 2021 WL 4998397 (W.D. N.C. Oct. 27, 2021)); Hutchens v. Comm'r of Soc. Sec., No. 1:20-CV-l 124, 2021 WL 5834409, at *13 (M.D. N.C. Dec. 9, 2021) (citing Lisa Y. v. Comm 'r of Soc. Sec., 570 F.Supp.3d 993 (W.D. Wash. 2021)). Accordingly, because Claimant has failed to demonstrate a sufficient harm from the alleged unconstitutional removal provision, it is recommended that this argument be rejected.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-18] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-24] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
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 September 2,2022 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).