Opinion
C. A. 2:20-cv-00701-BHH-MGB
05-11-2021
ANDREY HUDSON, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Andrey Hudson (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for an award of benefits.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 50 years old on her alleged disability onset date of December 10, 2015. (R. at 123.) Plaintiff originally claimed disability due to arthritis, an injured right knee, and aortic aneurysm. (R. at 123-24.) Plaintiff has past relevant work as licensed practical nurse. (R. at 129.)
Plaintiff protectively filed applications for DIB and SSI on September 14, 2016, alleging disability that began on December 10, 2015.0F (R. at 62, 217-33.) Her applications were denied initially. (R. at 62, 123-40.) After a hearing before an Administrative Law Judge (“ALJ”) in New York on January 24, 2019, the ALJ issued a decision on February 11, 2019, in which the ALJ found that Plaintiff was not disabled. (R. at 59-71.) Plaintiff appealed and submitted additional evidence to the Appeals Council. (R. at 12-28, 32-51.) The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
She subsequently filed applications for DIB on September 15, 2016, (R. at 234-35), and SSI on December 14, 2016 (R. at 236-41).
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
(2) The claimant has not engaged in substantial gainful activity since December 10, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: right knee degenerative joint disease and lumbar sprain (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant is limited to work that requires no more than occasional crouching, kneeling, or stooping.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on November 7, 1965 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from December 10, 2015, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). (R. at 62-71.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).1F
“[T]he definition of disability is the same under both DIB and SSI. . . .” Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing 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 [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff asserts that the ALJ erred in the following four ways: by omitting certain conditions, by discounting treating source statements, by ignoring medical opinions and evidence, and by giving inadequate consideration to Plaintiff's mental impairments. (Dkt. No. 11 at 2-5.) The Commissioner groups these complaints and addresses the following issues:
1. Whether the administrative law judge's (ALJ) finding that Plaintiff's obesity, sciatica, anxiety, depression, hypertension, paranoia, and right-sided weakness are not severe impairments requires remand; and
2. Whether the ALJ properly assessed the opinions from Plaintiff's treating physician? (Dkt. No. 12 at 1.)
For the reasons discussed below, in light of recently issued Fourth Circuit case law, the undersigned cannot find the ALJ's decision is supported by substantial evidence. Accordingly, the undersigned recommends remanding this case.
Treating Physician Opinion
An ALJ is required to assign weight to every medical opinion in a claimant's record. 20 C.F.R. §§ 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”); 404.1527(c)(2) (“We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.”). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide “a detailed, longitudinal picture” of a claimant's alleged disability. 20 C.F.R. 404.1527(c)(2). The Fourth Circuit has recently reiterated the treating physician rule in Arakas v. Commissioner, explaining that a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.”2F 983 F.3d at 107 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). If a treating physician's opinion is not accorded controlling weight, it still must be evaluated and weighed “pursuant to 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). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). The Arakas Court observed that “SSR 96-2p further notes that ‘[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'”3F Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p).
The Social Security Administration has amended the “Treating Physician Rule, ” effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2). Because Plaintiff's claim was filed before the effective date of the change, the decision is reviewed under the regulation in effect at that time, 20 C.F.R. § 404.1527.
SSR 96-2P was rescinded effective March 27, 2017 as part of the amendment of the “Treating Physician Rule.” SSA-2012-0035, 2017 WL 3928298. However, it was in effect at the time the Plaintiff filed her claim.
Other than a consultative examination, Plaintiff's medical records consist of office visit notes and medical source statements from Muntaz Majeed, M.D., who began treating Plaintiff years before her alleged date of disability. (See R. at 301-444.) The records reflect that Dr. Majeed treated Plaintiff for a variety of issues, both physical and mental. During her hearing, Plaintiff explained that Dr. Majeed had suggested that she see a specialist for her orthopedic issues at some point, but she could not afford to do so. (R. at 94.) She had also attempted to seek additional mental health treatment with a counselor, but the single session she attended was not productive, and she did not return. (R. at 96-97.) Plaintiff also explained at the hearing that, although she had been spending “a great deal” of time in South Carolina, (R. at 111), she did not have insurance that allowed her to see doctors in South Carolina. (R. at 115). As a result, she had continued to see Dr. Majeed via telehealth visits but would visit in person when she was in New York. (R. at 113-15.)
Dr. Majeed submitted two medical source statements, one pertaining to Plaintiff's physical limitations (R. at 306-08) and one pertaining to her mental limitations (R. 309-11). Both were completed on July 2, 2018. Dr. Majeed indicated that he had treated Plaintiff for over six years and had diagnosed her with right knee pain and sciatic right side, back pain. Her symptoms consisted of severe pain in her lower back and lower extremities. According to Dr. Majeed, Plaintiff's symptoms would constantly interfere with her attention and concentration required to complete simple tasks. She also suffered adverse side effects from medications. Dr. Majeed opined that Plaintiff would need to lie down and would need to elevate her legs above waist level every two hours. She could only walk one block without rest or significant pain. Dr. Majeed opined that Plaintiff could only sit, stand, or walk for one hour of an eight-hour workday and could only do so in five-minute increments. Plaintiff would need unscheduled thirty-minute breaks every fifteen minutes during a normal workday. Dr. Majeed opined that Plaintiff could occasionally lift and carry less than ten pounds, and she could never balance, stoop, kneel, or crouch. As to her manipulative limitations, Dr. Majeed opined that Plaintiff could use her hands twenty-five percent of the time, her fingers one hundred percent of the time, and her arms fifty percent of the time. Dr. Majeed opined that Plaintiff would be absent from work more than four times a month due to her impairments. He concluded that she was unable to sit, stand, and walk for prolonged periods of time. (R. at 306-07.)
As to Plaintiff's mental limitations, Dr. Majeed opined that she had moderate limitations in her understanding and memory. Likewise, she had moderate limitations in her sustained concentration and performance, except that she had marked limitations in her ability to maintain attention and concentration for extended periods.4F Dr. Majeed opined that Plaintiff was expected to be off task fifteen to twenty percent of the time. She had moderate limitations in her social interaction abilities generally but had marked limitations in her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. According to Dr. Majeed, Plaintiff had moderate limitations in her ability to adapt. (R. at 309-10.) Dr. Majeed indicated that he had treated Plaintiff since August 2011 and that she had had the limitations and restrictions outlined in both the physical and mental medical source statements since that time. (R. at 308, 311.)
Dr. Majeed indicated it was unknown whether Plaintiff had limitations in her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (R. at 309.)
In analyzing the medical opinions from Dr. Majeed, the ALJ first generally summarized the office notes for Plaintiff's treatment from December 2015 to November 2018. (R. at 67.) The ALJ noted the symptoms Plaintiff reported to Dr. Majeed and the examination findings from her office visits. (R. at 67.) The ALJ found as follows:
No weight is given to these opinions, as they are not supported by the underlying evidence. The office records of Dr. Majeed consistently indicate that the claimant's anxiety disorder was controlled by medication and there were no clinical findings or mental status exam findings to support any significant physical or mental limitations. She testified she primarily stays in contact with Dr. Majeed by phone and she only made two visits to his office in NY in the last year. This further detracts from any weight that can be assigned to his medical source statements. Additionally, the ultimate issue of inability to work is a decision reserved to the Commissioner (SSR 96-5p).(R. at 68.)
In her brief, Plaintiff offers general arguments about the ALJ's assessment of her treating physician's opinions. She faults the ALJ for discounting the opinions offered by Dr. Majeed because the ALJ found Plaintiff had “primarily stayed in contact with Dr. Majeed by phone[, ]” (R. at 68), noting that, at the time of the administrative hearing, she had been moving back and forth between South Carolina and New York. (Dkt. No. 11 at 3.) Plaintiff further argues that the ALJ ignored medical evidence and medical opinion to find Plaintiff not disabled:
In this case, we have both a treating physician, Dr. Majeed, and a consultative orthopedist, Dr. Wolf, who state the claimant has limitations in walking, standing, climbing, and lifting. Bright v. Barnhart, 386 F.Supp.2d 1295 (N.D Ga. 2004); Blakely v. Commissioner of Social Security, 581 F.3d 399 (6th Cir. 2009). The treating source, Dr. Majeed, also states the claimant cannot sit for long periods of time. (tr. p. 307). This opinion is supported by test results including X-rays. (tr. p. 305). A treating physician's opinion is entitled to controlling weight if it is supported by medically acceptable clinical techniques. Larson v. Astrue, 615 F.3d 744 (7th Cir. 2010); 20 CFR Section 404.1527(c)(2).(Dkt. No. 11 at 3-4 (errors in original).) In her response in opposition to the Commissioner's brief, Plaintiff offers some additional arguments as to alleged errors by the ALJ. In particular, she argues the ALJ mischaracterized the length of time Plaintiff had seen Dr. Majeed. (Dkt. No. 13 at 2.) Plaintiff also re-emphasizes her criticism of the ALJ's decision to discount Dr. Majeed's opinion due to the fact that Plaintiff had recently seen Dr. Majeed in telehealth visits, as opposed to in-person visits. (Id.) She also notes that her claims were filed in September 2016, and thus the prior version of the Social Security regulations is applicable. (Dkt. No. 13 at 3.)
Plaintiff's arguments challenge the ALJ's treatment of Dr. Majeed's medical opinions. Since this case was briefed, the Fourth Circuit decided Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377 (4th Cir. 2021), a case in which the court found there was substantial evidence supporting the ALJ's decision not to give a treating physician's opinion controlling weight, but the matter was remanded because the ALJ had not properly addressed the factors listed in 20 C.F.R. § 404.1527(c). 986 F.3d at 385. There are notable similarities between the instant case and Dowling. In Dowling, the Fourth Circuit did not fault the ALJ for not giving the treating physician's medical opinion controlling weight. The court stated, “[W]hile there is no indication that [the treating physician's] opinion was not ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques, ” 20 C.F.R. § 404.1527(c)(2), a reasonable mind could conclude that the opinion conflicts with other evidence in the record.” Id. Here, too, the ALJ noted particular aspects of the record that weighed against the level of disability expressed in Dr. Majeed's medical opinions. (See R. at 68.) Also, like Dowling, the ALJ's findings regarding Dr. Majeed's opinions “touche[d] on two of the Section 404.1527(c) factors-consistency and supportability.” Dowling, 986 F.3d at 385. However, the ALJ's decision was largely silent as to other 20 C.F.R. § 404.1527(c) factors, despite the ALJ's statement that he had “considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927.” (R. at 66.) In particular, in the instant case, the ALJ did not discuss the treatment relationship between Plaintiff and Dr. Majeed. The record reflects that Dr. Majeed had treated Plaintiff since August 2011. (R. at 308, 311.) The medical records also demonstrate that there were periods of time when Plaintiff saw Dr. Majeed very frequently, seeing him multiple times a month and sometimes multiple times a week. (R. at 312-444.) The length of time and frequency with which Plaintiff saw Dr. Majeed convey a treatment relationship that was neither discussed nor alluded to in the ALJ's decision. The Fourth Circuit has made clear that “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, [but] 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. In the instant case, the ALJ's decision does not make apparent that he meaningfully considered all of the factors in 20 C.F.R. § 404.1527(c). This was error.
The undersigned also considers whether the ALJ's error necessitates remand. Here, the ALJ gave “[n]o weight” to Dr. Majeed's opinions. Part of the ALJ's reasoning for discounting Dr. Majeed's opinions was the fact that, in the year prior to the hearing, Plaintiff saw Dr. Majeed primarily via telehealth visits due to the time she was spending in South Carolina instead of New York where Dr. Majeed's office was located. (See R. at 68.) However, there is no indication that the ALJ considered the familiarity that Dr. Majeed had with Plaintiff by that point since he had been treating her since 2011 and had seen her frequently during some periods. This is potentially significant since the treatment relationship would have weighed in favor of giving weight to Dr. Majeed's opinions. Indeed, the ALJ could have given some weight to Dr. Majeed's opinions had he found that telehealth visits did not detract from the weight that should have been assigned those opinions in light of the well-established treatment relationship up to that point. As such, the undersigned cannot say that substantial evidence supports the assignment of weight to Dr. Majeed's opinion. The undersigned therefore recommends remand to allow the ALJ to consider Dr. Majeed's medical opinions in light of each of the 20 C.F.R. § 404.1527(c) factors.
Remaining Allegations of Error
The undersigned does not address Plaintiff's remaining allegations. In light of the undersigned's recommendation that this matter be remanded for further consideration as discussed above, the undersigned need not address these issues as they may be rendered moot on remand. However, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by the Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED. --------- Notes: