Opinion
Civil Action No: 8:19-cv-02361-TMC-JDA
05-13-2020
Rhonda Jean Hutzell, Plaintiff, v. Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In July 2015, Plaintiff filed an application for DIB alleging disability beginning November 13, 2015. [R. 237-44.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 131-34, 136-39.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on March 20, 2018, ALJ Nicole S. Forbes-Schmitt conducted a de novo video hearing on Plaintiff's claim. [R. 34-56, 151-52.]
The ALJ issued a decision on July 25, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 11-33.] At Step 1, the ALJ found Plaintiff met the Act's insured-status requirements through December 31, 2018, and had not engaged in substantial gainful activity since November 16, 2013, the alleged onset date. [R. 16, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease, borderline personality disorder, bipolar disorder, amphetamine-induced psychotic disorder, and poly-substance abuse disorder. [R. 17, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of debilitating hearing loss and chronic obstructive pulmonary disease. [Id.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id., Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
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); can perform simple, routine tasks for at least two-hour intervals; low required production quotas; and can occasionally interact with the general public and coworkers.[R. 19, Finding 5.] At Step 4, the ALJ found that Plaintiff was incapable of performing her past relevant work as a dental assistant. [R. 25, Finding 6]. Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 26, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from November 16, 2013, the alleged onset date, through the date of the decision. [R. 27, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant request for judicial review on August 21, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ did not explain her findings regarding Plaintiff's RFC, as SSR 96-8p requires [Doc. 15 at 15-27] and did not properly assess medical source evidence [id. at 27-31]. The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's findings concerning Plaintiff's RFC [Doc. 18 at 14-27], as well as her evaluation of the medical opinions [id. at 28-34].
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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). "Disability" is defined 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do her past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on 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" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527©. Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462-03, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Assessment of Dr. McArthur's and Dr. Simons' Opinions
Plaintiff argues that the ALJ erred in her assessment of the opinions of Dr. McArthur and Dr. Jonathan Simons. [Doc. 15 at 29-31.] The Court agrees.
Social Security Ruling 96-2p requires that when an ALJ assesses medical opinions, her decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and . . . be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." 1996 WL 374188. Moreover, ALJs are instructed to apply the factors provided in 20 C.F.R. § 404.1527—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions. 20 C.F.R. § 404.1527©, (f). More weight is generally given to the opinions of examining sources than to non-examining ones. Id. Additionally, more weight is generally given to opinions of treating sources than is given to opinions of non-treating sources, such as consultative examiners. Id. And, "if 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." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (internal quotation marks omitted). Furthermore, the determination of whether a claimant is disabled under the Act is a legal determination and ultimately one for the Commissioner, and not a medical source, to make. 20 C.F.R. § 404.1527(d)(1) (stating "[a] statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled"). A medical source opinion on that issue is not entitled to any special weight. 20 C.F.R. § 404.1527(d)(3). ALJs are further prohibited from substituting their medical opinions for those of medical providers, which the Fourth Circuit recently referred to as the prohibited practice of the ALJ "playing doctor." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).
Medical Evidence Regarding Mental Conditions and RFC
The ALJ summarized her analysis of the medical evidence, as it relates to Plaintiff's mental impairments, as follows:
In August of 2014, Jasen Rowles, DO, found the bipolar disorder to be stable on medication (Ex. 23F/22). . . . In 2015, Patrick McArthur, DO, prescribed Wellbutrin, Klonopin, Ativan, and Lamictal (Ex. 15F). The claimant frequently reported improvement or "feeling better" with psychotropic medications (Ex. 15F/6, 48-49). . . . The claimant was involuntarily committed from December 1-7, 2016, due to substance inducted mania and psychosis (Ex. 29F/8). She volunteered to stay several more days than required for stabilization (Ex.
27F/19). She was discharged stable with medications restarted (Ex. 27F/3). . . .
. . . .
The positive mental status signs support some degree of limitation but not the degree alleged (20 CFR 404.1529©; SSR 16-3; 96-8p). In 2013, Michael Wilcox, MD, PhD, and counselors noted isolative tendencies, occasional, flat affect, mild anxiety, fair attention and concentration, and fair energy levels (Ex. 7F/17-20; 15F/44). In October of 2015, Jonathan Sim[]ons, PhD, reported tense, irritated expression, lack of cooperation, argumentativeness, angry mood, and constricted affect. She performed serial seven subtractions with one mistake (Ex. 18F). In 2015 and 2016, Dr. McArthur found labile affect, moderately distractible attention and concentration, low average cognitive ability, and moderately deficient memory (Ex. 16F; 24F; 26F). In December 1-7, while [the claimant was] an inpatient, Meenakshi Parmar, MD, reported auditory hallucinations, disorganized thoughts, hyper-verbal speech, simple language, disheveled appearance, delusions, tearfulness, poor insight and judgment, loose associations, hostility, and lack of cooperation on admission to the unit; all of which improved or resolved with treatment (Ex. 27F/3). In December of 2016, Darian Mehalic, LCSW, reported one instance of subjective hallucinations and labile affect[](Ex. 28F). In 2017, Judy Figueroa, LCSW, noted guarded behavior, intense eye contact, pressured speech, loose associations, circumstantial thought process, delusions of grandiosity, mild impairment in recent memory, poor judgment, irritable or angry mood, and subjective hallucinations. The claimant could recall two of three words after several minutes (Ex. 29F). These findings support task level, social, and adaptive limitations; but the periods of moderate to marked symptoms were isolated to periods of substance abuse or medication noncompliance. The mild-moderate mental status signs during periods of sobriety and compliance do not justify disabling mental limitations.
The negative mental status signs establish that the claimant is capable of some level of work activity (20 CFR 404.1529©; SSR 16-3p, 96-8p). In 2013, counselors noted normal compliance, appetite, interest, sleep, thought process, thought content, appearance, behavior, speech, mood, attention, mood, judgment, perception, and insight (Ex. 7F/17-20). . . . In
2015, Dr. McArthur found normal grooming, hygiene, orientation, mood, thought process, thought content, and perception (Ex. 16F; 24F; 26F). In December 1-7, 2016, Dr. Parmar reported normal thought process, thought content, perception, behavior, and speech (Ex. 27F/3). In December of 2016, Mr. Mehalic and other counselors reported normal appearance, cooperation, speech, orientation, memory, and focus (Ex. 28F). In 2017, Ms. Figueroa and other counselors noted normal appearance, thought content, orientation, remote memory, attention, concentration, language, insight, fund of knowledge, and intellectual ability (Ex. 29F). These findings strongly suggest that the claimant can perform simple tasks.
The claimant's statements about the level of impairment, restrictions, activities, and efforts to work do not support the allegations (20 CFR 404.1512(b); 404.1529©; SSR 16-3p, 96-8p). In October of 2013, the claimant was working two days a week at a dentist office. She reported to Dr. Sim[]ons that she could care for her child, independently perform most tasks of daily living, cook simple meals, shop with lists, read books, make jewelry, and perform typical chores (Ex. 18F/3). In 2013, the claimant was working two days a week with fair performance (Ex. 15F/46, 49; 20F/50). Through 2015, the claimant was employed from 7:00am to 2:00pm Thursdays and Fridays but was allowed to leave when work was completed (Ex. 21F/5). In January of 2015, the claimant reported that she was able to cope with an episode of indecision, that her confusion had improved, and that back pain was her most frequent issue with leaving work (Ex. 24F/2). In March of 2016, the claimant reported that work, family, and friends were good and that she was taking medications in the morning with better results (Ex. 26F/6). In September of 2016, the claimant reported to Dr. McArthur that she was laid off from work and was taking yard work, manicures and pedicures, and whatever to make money (Ex. 26F/2). In November of 2016, the claimant reported she was working at a free clinic on Saturdays and that she was going to the Bahamas with her four friends. She reported good sleep, and stable anxiety (Ex. 26F/1). In 2017, the claimant was able to exercise every day for an hour, clean the house, attend appointments once a month, maintain social events with a few friends, interact with family, and make crafts (Ex. 29F/1). These statements and activities while compliant and sober do not support disabling physical or mental limitations.
. . . .[R. 20-25 (emphasis added).]
In July of 2015, Patrick McAr[th]ur, MD, advised that the claimant has adequate ability to complete basic activities of daily living, adequate ability to relate to others, adequate ability to complete simple, routine tasks; and poor ability to complete complex tasks (Ex. 16F). Dr. McArthur found marked limitations in activities of daily living and social functioning; deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks timely; repeated episodes of decompensation in work settings causing withdrawal or exacerbation of symptom; and ability to function outside the home. Dr. McArthur advised that the claimant is extremely impaired in performing within a schedule and completing a normal workday; markedly impaired in maintaining attention and concentration for extended periods, working with others, making simple decisions, interacting with the public, accepting instructions from supervisors, getting along with coworkers, maintaining socially appropriate behavior, responding appropriately to changes in work setting, traveling to unfamiliar places and using public transportation; and moderately impaired in remembering locations and procedures, understanding and remembering detailed instructions, and setting realistic goals and plans (Ex. 14F/4; 15F/1-2; 17F/2). In July of 2015, Dr. McArthur advised that the claimant['s] bipolar disorder would require psychiatric care for the rest of her life (Ex. 21F/12). Dr. McArthur saw the claimant every two months from April of 2014 to September of 2015 (Ex. 16F). Dr. McArthur did not, apparently, perform mental status exams but did document symptoms, complaints, and medications (Ex. 14F; 15F). The undersigned found that the negative mental status signs of normal grooming, hygiene, orientation, mood, thought process, thought content, perception psychomotor movements, orientation, calculations, intellectual functioning, memory, judgment, and insight strongly suggest that the claimant can perform simple, routine, [and] repetitive tasks for a full workweek and gave greater weight to Dr. McArthur's first opinion (Ex. 16F; 18F; 24F; 26F; 27F/3; 28F; 29F).
As the Commissioner recognizes [Doc. 18 at 29 n.12], the ALJ was mistaken regarding the dates of the opinions. On July 15, 2015, Dr. McArthur answered a questionnaire asking, regarding particular work limitations concerning Plaintiff's psychiatric state, whether Plaintiff was not significantly impaired, moderately impaired, markedly impaired, or extremely impaired. [R. 699.] Dr. McArthur answered that Plaintiff was extremely impaired in her abilities "to perform activities within a schedule, maintain regular attendance, and be functional within customary tolerances," noting that she "only gets out of bed to go to work" and that she has "restricted duties at work" as noted in a letter from her employer. [Id.] He also found that she was extremely impaired in her ability "to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods," noting that she could not "do a normal workweek" but could "only do 2 days per week and on these days only limited duties." [Id.] He opined that Plaintiff was markedly impaired in her abilities to "maintain attention and concentration for extended periods," "work in coordination with and proximity with others without being distracted by them," "make simple work related decisions," "interact appropriately with the general public," "ask simple questions or request assistance," "accept instructions and respond appropriately to criticism from supervisors," "get along with coworkers or peers without distracting them or exhibiting behavioral extremes," "maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness," "respond appropriately to changes in the work setting," and "travel in unfamiliar places or use public transportation." [Id.] However, he found she was only moderately impaired in her abilities to "remember locations and work-like procedures," "understand and remember detailed instructions," and "set realistic goals or make plans independently of others." [Id.] And he found she was not significantly impaired in her abilities to "understand and remember short and simple instructions," "sustain an ordinary routine without special supervision," "ask simple questions or request assistance," and "be aware of normal hazards and take appropriate precautions." [Id.]
On September 21, 2015, Dr. McArthur filled out an additional questionnaire that asked questions concerning Plaintiff's thencurrent mental status and also asked, regarding specified mental impairments, whether Plaintiff's abilities in certain areas were good, adequate, or poor or whether Dr. McArthur was unable to say. [R. 696.] Regarding Plaintiff's thencurrent mental status, Dr. McArthur answered that she had appropriate grooming/hygiene; was oriented as to time, person, place, and situation; displayed labile affect, euthymic mood, normal thought process, no perceptual distortions, low average cognitive ability, moderately distractible attention/concentration, and had a moderate deficit in memory. [Id.] As to the specified impairments, Dr. McArthur answered that Plaintiff had adequate ability to complete basic activities of daily living; adequate ability to relate to others, adequate ability to complete simple, routine tasks; and a poor ability to complete complex tasks. [Id.]
Discussion
The Court concludes that the ALJ's analysis regarding the weight she gave the medical opinions is not in compliance with the applicable rules.
The ALJ's analysis is most obviously flawed with regard to the views of Dr. McArthur, Plaintiff's treating psychiatrist, that Plaintiff is extremely impaired in her abilities to "complete a normal workday and workweek without interruptions from psychologically based symptoms," and "perform at a consistent pace without an unreasonable number and length of rest periods." [R. 699.] In apparently rejecting that opinion, the ALJ simply stated that:
The undersigned found that the negative mental status signs of normal grooming, hygiene, orientation, mood, thought process, thought content, perception psychomotor movements, orientation, calculations, intellectual functioning, memory, judgment, and insight strongly suggest that the claimant can perform simple, routine, and repetitive tasks for a full workweek and gave greater weight to Dr. McArthur's first opinion (Ex. 16F; 18F; 24F; 26F; 27F/3; 28F; 29F).[R. 25 (emphasis added).] It appears that when the ALJ referred to "Dr. McArthur's first opinion," the ALJ was referring to Dr. McArthur's opinion that Plaintiff's abilities to complete basic activities of daily living, to relate to others, and to complete simple, routine tasks were "adequate." [R. 696 (Ex. 16F, which the ALJ cited).] But the ALJ identified nothing in the record that called into question Dr. McArthur's apparent view that whether a person has adequate ability to "relate to others, and to complete simple, routine tasks"—which he believed Plaintiff had—is a separate question from whether that same person can sustain that performance for "a normal workday and workweek without interruptions from psychologically based symptoms," and "perform at a consistent pace without an unreasonable number and length of rest periods"—which Dr. McArthur believed Plaintiff could not do. [R. 699.] Indeed, Dr. Simons came to similar conclusions about Plaintiff's abilities, finding that although "[c]ognitively, [Plaintiff] appears capable of semi-skilled work," "[s]he is able to maintain focus, attention, and persistence and pace for about 2 days a week." [R. 709.] To the extent that the ALJ formed her own judgment that a person with adequate ability to perform the tasks would also be able to sustain that performance, it appears that the ALJ was offering her own medical opinion and then using her unauthorized medical opinion as the basis for rejecting Dr. McArthur's and Dr. Simons' contrary opinions. For that reason, the Court can only conclude that the ALJ failed to offer a good reason for discrediting Dr. McArthur's and Dr. Simons' opinions.
Dr. Simons added that Plaintiff's "social functioning appears to be mildly impaired" and that "[s]he is irritable"; she has "a history of serious social problems at work"; and "[i]t is likely that she would have some social problems in work settings." [R. 709.] Dr. Simons also observed that "[i]t is possible that her very supportive boss allows for mistakes that might not be acceptable in other work situations." [Id.]
Additionally, the ALJ failed to show how she applied the § 404.1527(d) factors, which are the length of treatment, frequency of examination, nature and extent of the treating relationship, support of opinion afforded by medical evidence, consistency of the opinion with the record as a whole, and specialization of the treating physician. Dr. McArthur, after all, is a psychiatrist who regularly treated Plaintiff. His opinion was supported by his treatment notes that documented her audio hallucinations, her inability to perform activities of daily living during her depressed states, her symptoms of panic attacks, her "'crabby'" moods, and his attempts to use medication to treat her symptoms. [R. 587, 591, 596, 599, 603-04.] And Dr. McArthur's findings were consistent with findings of other evaluating specialists, including Dr. Simons.
The Commissioner argues that "nothing in section 404.1527 requires an express discussion of each factor in weighing the medical opinions." [Doc. 18 at 32.] The Commissioner also points to different parts of the ALJ's decision that would have been relevant in a proper application of the 404.1527 factors. [Id. at 33.] The Commissioner is certainly correct to the extent he suggests that an ALJ need not explicitly discuss every factor when her analysis can reasonably be discerned from her decision. E.g., Williams v. Colvin, No. 3:12-1422-JRM, 2013 WL 3338492, at *7 (D.S.C. Jul. 2, 2013) ("The ALJ is not . . . required to expressly apply each of these factors in deciding what weight to give a medical opinion and not every factor applies in every case."). However, in this case, the ALJ's reference in different places in her decision to the facts the ALJ points to was not sufficient to build a logical bridge showing how the ALJ viewed and analyzed the applicable factors and why the ALJ decided that Dr. McArthur's and Dr. Simon's opinions were entitled to lesser weight. And without such a logical bridge, the Court is not in a position to consider whether substantial evidence supports the ALJ's decision. Accordingly, the Court recommends that the ALJ's decision be reversed and the case remanded. On remand, the ALJ will need to clarify the analysis.
The Commissioner points out that the ALJ "also considered the opinions of the state agency psychologists, including Dr. Tezza, who expressly found that Plaintiff 'can attend work regularly' and would only miss an 'occasional' day or half-day." [Doc. 18 at 34.] But what is missing from the ALJ's analysis is a logical bridge explaining why, considering the applicable factors, the medical judgment of the treating physician regarding whether Plaintiff would have the capacity to sustain her performance for a full workweek without excessive breaks or absences was not entitled to controlling weight or at least more weight than the state agency psychologists. --------
Remaining Allegation of Error
Because the Court finds that the ALJ's RFC analysis is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegation. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegation of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case to be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge May 13, 2020
Greenville, South Carolina