Opinion
7:20-CV-218-FL
02-09-2022
EDWARD B. EADY, 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-18, -20] pursuant to Fed.R.Civ.P. 12(c). Claimant Edward B. Eady ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). 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 an application for a period of disability and DIB on September 26, 2015, alleging disability beginning on September 4, 2014. (R. 12, 230). Both claims were 1 denied initially and upon reconsideration. (R. 12, 68-92). A hearing before the Administrative Law Judge ("ALJ") was held on May 21, 2020, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 27-67). On July 20, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-26). On October 26, 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.
According to Claimant, on February 28, 2019, Defendant admitted that Claimant's 2015 application was not appropriately developed by Defendant, after Claimant filed another claim on February 5, 2019. The 2015 claim was then reopened and Claimant was granted a protective filing date of September 26, 2015. Pl.'s Mem. [DE-19] at 6.
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 2 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 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). 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). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §404.1520a(e)(3).
In this case, Claimant alleges the following errors: the ALJ failed to properly analyze and at least give substantial weight to the opinions of Claimant's treating physicians, Dr. Rafalowski 3 and Dr. DeMaria. Pl.'s Mem. [DE-19] at 15-24.
The page number referenced corresponds to die page number in the CM/ECF footer, which differs from the document's internal page number.
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 September 4, 2014, the alleged onset date. (R. 14-15). Next, the ALJ determined Claimant had the following severe impairments: migraines, chronic sinusitis, and Meniere's disease. (R. 15). The ALJ also found Claimant had nonsevere impairments of body mass index ("BMI") exceeding 35.26 kg/m2, and benign essential hypertension. 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. 15-16).
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 me 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).
[T]he claimant is limited to occasional climbing ramps and stairs, but no ladders, ropes or scaffolds. He can occasionally balance, stoop, kneel, crouch, and/or crawl. The claimant must avoid concentrated exposure to temperatures [sic] extremes of cold and heat, as well as humidity. He must avoid concentrated exposure to noise, further defined to mean a maximum noise level 3 for the work setting, which is moderate according to the Selected Characteristics of Occupations (SCO). The claimant must avoid concentrated exposure to vibration, as well as concentrated exposure to pulmonary irritants, such as fumes, odors, dust, gases, poor ventilation and the like. Avoid all exposure to workplace hazards, such as dangerous moving machinery and unprotected heights.4 (R. 16-20). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence. (R. 18-19).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work as a maintenance mechanic and a millwright. (R. 20). 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. 21-22).
V. DISCUSSION
Claimant contends that the ALJ committed reversible error because he failed to properly weigh the opinions of Claimant's treating physicians, Dr. Rafalowski and Dr. DeMaria, regarding Claimant's severe migraine disorder. Pl.'s Mem. [DE-19] at 15-24; see (R 382-410, 470-73; 346-52, 434-41). Specifically, Claimant contends that the ALJ erred in his analysis of Dr. Rafalowski's and Dr. DeMaria's opinions by using the newer regulation for cases with protective filing dates on or after March 27, 2017, 20 C.F.R. § 404.1520c, instead of the prior regulation, 20 C.F.R. §404.1527. Pl.'s Mem. [DE-19] at 19-20. Because the ALJ did not use the correct regulation, Claimant continues, the ALJ committed reversible error when he did not assign weight to those doctors' opinions. Id. at 20. Defendant counters that substantial evidence supports the ALJ's RFC determination, and thus the Claimant is inviting the court to reweigh evidence. Def.'s Mem. [DE-21]at5-17.
As an initial matter, the court finds that 20 C.F.R. §404.1527 applies to this claim filed prior to March 27, 2017. Defendant does not contest the applicability of §404.1527, but rather argues that the ALJ simply referenced the wrong regulation but applied the appropriate law. Def.'s Mem. [DE-21] at 12-14. 5
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion ofa non-examining source. Id. § 404.1527(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).
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. 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).
"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 6 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)).
Here, the ALJ failed to give any particular weight to the medical opinions of Dr. Rafalowski and Dr. DeMaria, though he found them to be "not persuasive." (R. 19). The ALJ stated the following, regarding all medical opinions:
As for medical opinion(s) and prior administrative medical finding(s), the undersigned will not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding(s) or medical opinion(s), including those from the claimant's medical sources. The undersigned has fully considered the medical opinions and prior administrative medical findings in this case. In accordance with 20 CFR 404.1520b(c) and 416.920b(c), the undersigned did not provide articulation about the evidence that is inherently neither valuable, nor persuasive.Id.
The ALJ went on to discuss the treatment source statements of Dr. Rafalowski and Dr. DeMaria. Id. The ALJ stated that he did not find these opinions persuasive, citing the current regulation, § 404.1520b(c), because the statements "merely responded to a typewritten questionnaire prepared by the claimant's attorney," offered "minimal explanation as why the claimant could not perform work at any job," and were based largely upon self-reports. Id. Further, the ALJ noted, "treatment notes and exams fail to provide additional insight into these statements, as claimant's exams and diagnostic testing have been generally unremarkable." Id.
Under § 404.1527, "[w]hile an ALJ is under no obligation to accept any medical opinion, he or she must nevertheless explain the weight afforded such opinions." Hooker v. Colvin, No. 5-.15-CV-478-FL, 2016 WL 4940197, at *6 (E.D. N.C. Sept. 16, 2016); see S.S.R. 96-2p, 1996 WL 7 374188, at *5 (July 2, 1996). Here, no weight was assigned and the ALJ simply utilized the new standard of "persuasiveness" from § 404.1520c. While the ALJ did discuss the statements of Dr. Rafalowski and Dr. DeMaria, this analysis did not apply or explain the "treating physician rule."
Under the Treating Physician Rule, 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." Arakas v. Comm 'r, Soc. Sec. Admin., 983 F.3d 83, 107 (4th Cir. 2020) (emphasis in original); Christian v. Saul, No. CV 1:20-00051, 2021 WL 1170012 (S.D. W.Va. Mar. 26, 2021).
The Fourth Circuit, in Dowling v. Comm'r of SSA, found that while substantial evidence supported an ALJ's decision not to give controlling weight to a treating physician's medical opinion because "a reasonable mind could conclude that the opinion conflicts with other evidence in the record," the ALJ erred in failing to consider each of the §404.1527(c) factors. 986 F.3d 377, 384-85 (4th Cir. 2021); see also, Christian, 2021 WL 1170012. There, the ALJ touched on two §404.1527(c) factors-consistency and supportabilty-but the Court found that there was "no indication that the ALJ actually undertook the required analysis of Dr. Gross's opinion." Dowling, 986 F.3d at 385. Further, the Dowling court noted that the ALJ was "completely silent" as to the remaining §404.1527(c) factors, and, for example, never considered the "[l]ength of the treatment relationship and the frequency of examination," nor the "[n]ature and extent of the treatment relationship." 20 C.F.R. § 404.1527(c)(2)(i)-(ii).
Here, similarly, the ALJ's discussion of supportability and consistency alone are inadequate under the applicable rule to analyze Dr. Rafalowski's and Dr. DeMaria's opinions. See (R. 19). As in Dowling and Christian, here "there is no indication that the ALJ actually undertook the required analysis" of the treating physician's opinion and likewise did not "acknowledge the 8 existence of the Section 404.1517(c) factors." "While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion." Dowling, 986 F.3d at 385 (citing Arakas, 983 F.3d at 107 n. 16 ("20 C.F.R. § 404.1527(c) requires ALJs to consider all of the enumerated factors in deciding what weight to give a medical opinion.")) (emphasis in original).
Defendant argues that the error is harmless because the ALJ's evaluation of the opinions is supported by substantial evidence despite referencing the wrong standard. However, substantial evidence is just one consideration, and the court must also be satisfied that "the decision was reached through the application of the correct legal standards." Coffman, 829 F.2d at 517. The ALJ did not simply reference the incorrect regulation, as the Commissioner argues, Def.'s Mem. [DE-21] at 14, but rather applied the incorrect regulation as evidenced by the failure to weigh the opinions and apply the treating physician rule. It is not the court's role to apply the correct standard in the first instance. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
This court explained in Cumbee v. Kijakazi that the court cannot substitute the Commissioner's explanation for one not given by the ALJ:
however meritorious [the Commissioner's suggested] rationale might be, acceptance of such an unclearly stated but ostensibly implicit rationale would constitute "post-hoc justification." See Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 109 (4th Cir. 2020); see also Radford, 734 F.3d at 296 (explaining that it is "no[t] the province of the district court" to "make credibility determinations ... in the first instance" (quotation omitted)). The ALJ has an "obligation to provide 'a narrative discussion [of] how the evidence supported] [his] conclusion, '" Arakas, 983 F.3d at 106 (quoting Monroe, 826 F.3d at 190-91), which he or she fails to meet where a "specific explanation of the ALJ's reasons for the differing weights he assigned various medical opinions" is not given. Monroe, 826 F.3d at 191.No. 7:20-CV-59-FL, 2021 WL 4447625, at *4 (E.D. N.C. Sept. 28, 2021). Here, although the ALJ 9 discussed factors such as supportability and consistency, because it is not clear the ALJ meaningfully considered all the requisite factors and the ALJ did not apply the treating physician rule, meaningful review is frustrated. Thus, remand is appropriate for the ALJ to appropriately weigh the medical opinions with the correct regulatory standard. See Pansini v. Kijakazi, No. 2:20-CV-01701-FB, 2021 WL 4478655, at *2 (E.D.N.Y. Sept. 30, 2021) (finding the ALJ erred by applying the wrong legal standard to the medical opinion evidence resulting in a failure to apply the Treating Physician Rule to a claim filed in 2013, and remanding for an award of benefits); Yousef v. Saul, No. 7:18-CV-92-FL, 2019 WL 5816654 (E.D. N.C. July 22, 2019) (remanding for a hearing when the ALJ erred in weighing the opinion evidence), adopted by 2019 WL 3820489 (E.D. N.C. Aug. 14, 2019); Pope v. Colvin, No. 5:14-CV-473-D, 2015 WL 9898578, at *7 (E.D. N.C. Dec. 23, 2015) (remanding for a hearing when the ALJ erred in weighing the medical opinions and stating "the court expresses no opinion on the weight that should be accorded any piece of evidence, matters that are for the Commissioner to resolve"), adopted by 2016 WL 236217 (E.D. N.C. Jan. 20, 2016). The court expresses no opinion on whether or not the ALJ should have given substantial or controlling weight to the opinions of Dr. Rafalowski and Dr. DeMaria. 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).
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-20] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation. 10
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 February 23, 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). 11