Opinion
7:17-CV-246-D
11-19-2018
APRIL JANOWSKY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff April Janowsky ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 14, 16. Both filed memoranda in support of their respective motions. D.E. 15, 17. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 23 July 2018 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be allowed, plaintiff's motion be denied, and the final decision of the Commissioner be affirmed.
BACKGROUND
I. CASE HISTORY
Plaintiff filed an application for DIB on 8 September 2015, alleging a disability onset date of 20 May 2015. Transcript of Proceedings ("Tr.") 10. Plaintiff reported that she was injured in a motor vehicle accident on that date. See, e.g., Tr. 18 ¶ 5. The application was denied initially and upon reconsideration, and a request for a hearing before an administrative law judge ("ALJ") was timely filed. Tr. 10. On 19 October 2016, a hearing was held at which plaintiff, who was represented by counsel, and a vocational expert testified. Tr. 10; 51-105. A supplemental video hearing was held on 2 May 2017 following the proffer of investigative reports on plaintiff (Tr. 579-639), at which plaintiff alone testified. Tr. 10; 32-50. On 23 August 2017, the ALJ issued a decision denying plaintiff's application. Tr. 10-25.
See also Tr. 350 (note on visit to emergency department on 20 May 2015 stating that plaintiff reported that she was rear-ended on that date by a car travelling about 20 m.p.h.); 464 (note on 12 Dec. 2015 consultative evaluation of plaintiff stating that she reported being rear-ended on 20 May 2015 by a vehicle travelling 40 to 45 m.p.h.).
Plaintiff timely requested review by the Appeals Council. Tr. 154. On 28 November 2017, the Appeals Council denied the request for review. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 22 December 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See Compl. (D.E. 1).
The versions of the regulations and Social Security Rulings cited by the undersigned herein are those applicable to plaintiff's claim and the ALJ's decision.
II. STANDARDS FOR DISABILITY
The Social Security Act ("Act") defines disability 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 months." 42 U.S.C. § 423(d)(1)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step. If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to Supplemental Security Income ("SSI"). The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.
See also 20 C.F.R. § 404.1545(a)(2).
See also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(2); 404.929.
III. ALJ'S FINDINGS
Plaintiff was 27 years old on the alleged disability onset date and 29 on the date of the supplemental hearing. See Tr. 24 ¶ 6. The ALJ found that plaintiff, who testified that she received a GED, had at least a high school education. Tr. 24 ¶ 6; 58-59. The ALJ also found that plaintiff had past relevant work as a customer service representative. Tr. 23 ¶ 6.
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 20 May 2015, the alleged disability onset date. Tr. 12 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: status post seizures, right upper extremities tremor of unknown etiology, headaches, and anxiety disorder. Tr. 12 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 13 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of medium work:
After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform medium work as defined in 20 CFR 404.1567(c) except the claimant can handle, finger, and feel frequently with the right
dominant upper extremity. She can climb ramps and stairs frequently. She can climb step ladders frequently, with step ladders being defined as having a height of no more than four vertical feet, but never for ladders above that height and never for ropes and scaffolds of any height. She can balance frequently. She can have frequent exposure to unprotected heights, moving mechanical parts, operation of a motor vehicle, extreme cold, and extreme heat. She can be exposed to no greater than loud noise levels. She is limited to no production rate paced work such as no assembly line work or work with production based performance quotas. She is limited to frequent changes to the work setting and the manner and method of performing the assigned work. Her time off task can be accommodated by normal breaks attended to the work.Tr. 16 ¶ 5.
Under this regulation, "medium work" is defined as work as work that "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "M-Medium Work," 1991 WL 688702. The terms for exertional level as used in the Regulations have the same meaning as in the DOT. 20 C.F.R. § 404.1567.
Based on his determination of plaintiff's RFC and relying on the testimony of the vocational expert, the ALJ found at step four that plaintiff was able to perform her past relevant work as a customer service representative as actually and generally performed. Tr. 23 ¶ 6. The ALJ thereby found that plaintiff was not disabled from the alleged disability onset date, 20 May 2015, through the date of the decision, 23 August 2017. See Tr. 25 ¶ 7.
Alternatively, at step five, again relying on the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of counter supply worker, mail clerk, order puller, and hospital cleaner. Tr. 23-25 ¶ 6. The ALJ accordingly concluded on this alternative ground that plaintiff was not under a disability from the alleged disability onset date through the date of the decision. Tr. 25 ¶ 7.
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
DISCUSSION
I. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded, or in the alternative, that the case should be remanded for a new hearing on the grounds that the ALJ erred in determining plaintiff's RFC and assessing her statements regarding her impairments, that is, her symptoms. Each ground is examined in turn below.
See 20 C.F.R. § 404.1528(a) (defining symptoms as a claimant's statements about his impairments). Plaintiff uses the term "credibility" in describing the ALJ's assessment of plaintiff's symptoms (Pl.'s Mem. 3, 11), but use of that term is outdated. See Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2, 13 (25 Oct. 2017) (applicable on 28 Mar. 2016) (rescinding Soc. Sec. Ruling 96-7p pursuant to Social Security Administration's decision to eliminate use of the term "credibility" from its sub-regulatory policy).
II. ALJ'S RFC DETERMINATION
A. Applicable Legal Principles
1. RFC
As discussed, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. § 404.1545(a)(3). The assessment includes evaluation of the claimant's symptoms. See, e.g., Mascio, 780 F.3d at 639; Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *12 (25 Oct. 2017); Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5, 7. An ALJ's decision must state his RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7.
2. Medical Opinion Evidence
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. § 404.1527(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F. Supp. 2d 740, 752 (N.D.W. Va. 2009) ("Pursuant to 20 C.F.R. § 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); see generally Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, namely, the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. § 404.1527(c)(2)-(6).
At one point in her brief, plaintiff mischaracterizes these factors as determining whether opinions are to be given controlling weight. Pl.'s Mem. 11.
The ALJ's "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 must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. § 404.1527(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
The factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") not given controlling weight also apply to the opinions of providers who are deemed to be at a different professional level, or so-called "other sources," including nurse practitioners. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *2, 4 (9 Aug. 2006); see also 20 C.F.R. § 404.1513(d)(1) (listing nurse practitioners and therapists among "other sources"). As with opinions from physicians and psychologists, the ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, Civ. No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). The fact that an opinion is from an acceptable medical source may justify giving that opinion greater weight than an opinion from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.
The same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. § 404.1527(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (21 Apr. 2015); Napier, 2013 WL 1856469, at *2. More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to the opinions of an examining source than to the opinions of a nonexamining source. See 20 C.F.R. § 404.1527(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. § 404.1527(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
B. Analysis
Plaintiff's challenge to the ALJ's RFC determination is based on his alleged error in not giving certain opinions of plaintiff's treating neurologist, C.E. Ballenger, III, M.D., controlling weight. The court finds no harmful error.
The record shows 12 visits by plaintiff to the practice at which Dr. Ballenger worked, Coastal Carolina Neurology, P.A., from 21 July 2015 to 14 June 2016. See Tr. 479-98 (Ex. 8F); 504-06 (Ex. 9F); 511-12 (Ex. 11F). On several of these visits, it appears that a family nurse practitioner ("FNP"), rather than Dr. Ballenger, saw plaintiff. See Tr. 486-88 (note on 9 Sept. 2015 visit signed by FNP Perihan Warren that day and by Dr. Ballenger on 3 Dec. 2015); 489 (note on 2 Sept. 2015 visit signed by only FNP Warren); 504-05 (note on 23 Mar. 2016 visit states FNP Helen Vickers dictated it for Dr. Ballenger who signed the note); see also Tr. 492-93 (note on portion of visit on 19 Aug. 2015 signed by only FNP Warren). The record also contains a functional abilities assessment form signed by Dr. Ballenger (Tr. 507-10 (Ex. 10F)) and a letter by Dr. Ballenger with a signature date of 23 May 2016 (Tr. 513-14 (Ex. 11F, pp. 3-4)). The note on the 14 June 2016 visit (Tr. 511-12 (Ex. 11F, pp. 1-2)) references a letter, and the 23 May 2016 letter appears to be that letter.
The ALJ discussed Dr. Ballenger's treatment of plaintiff at various points in his review of the medical evidence (see Tr. 18 ¶ 5; 19 ¶ 5), in addition to discussing specifically Dr. Ballenger's medical opinions (see Tr. 21-22 ¶ 5). Because an ALJ's decision must be read as a whole, the statements the ALJ made regarding Dr. Ballenger outside his assessment of Dr. Ballenger's opinions may properly be considered by the court in evaluating the propriety of that assessment. See, e.g., Smith v. Astrue, No. 11-1574, 2011 WL 6188731, at *1 (4th Cir. 14 Dec. 2011); Lydia v. Astrue, No. 2:11-1453-DCN-BHH, 2012 WL 3304107, at *5 (D.S.C. 25 Jul. 2012) ("This sort of deconstruction of the ALJ's decision [ ] is not useful. The ALJ's decision must be read as a whole."), rep. & recomm. adopted, 2012 WL 3308108, at *1 (13 Aug. 2012); Finley v. Astrue, No. 5:08-CV-209-D(l), 2009 WL 2489264, at *5 (E.D.N.C.) ("[T]he ALJ's decision may appropriately be read 'as a whole.'" (quoting Jones v. Barnhart, 364 F.3d 501, 504-05 (3rd Cir. 2004))), mem. & recomm. adopted, 2009 WL 2489264, at *1 (E.D.N.C. 13 Aug. 2009).
The ALJ summarized Dr. Ballenger's opinions as follows:
Treating source C.E. Ballenger, III, M.D., and Helen Vickers, FNP, dictating for Dr. Ballenger, provided conflicting opinions regarding the claimant's functionality. Whereas the opinions in Exhibit 8F, 9F, and 10F concluded that the claimant is disabled, the opinion in 11F indicated otherwise. In November 2015, Dr. Ballenger opined that the claimant is completely incapable of functioning whatsoever as a result of her motor vehicle accident. Dr. Ballenger opined that the claimant could not sit, stand, stoop, kneel, crawl, climb stairs, reach above her shoulders, or pull with her left or right arm (10F/1). Dr. Ballenger opined that she could not walk unassisted except for very short periods of time (10F/2). Dr. Ballenger opined that she could not lift or carry (10F/3).Tr. 21 ¶ 5.
Also in this month, Dr. Ballenger opined that the claimant could not drive or operate dangerous machinery (8F/4). He opined that she is currently disabled from working teleconference where she has to type, stand or even sit for prolonged period of time (8F/6). He opined that she has a tremor on the right hand precluding fine coordinated movements but no real weakness of the right side (8F/6). In December 2015, he noted how the claimant was informed she could not drive, climb heights, swim alone, bath alone, or engage in recreational activity such as riding bikes alone until further notice as a seizure precaution (8F/9). In March 2016, Helen Vickers, FNP, dictating for Dr. Ballenger, opined that the claimant cannot work at this time due to her multiple health problems (9F/1). However, in June 2016, Dr. Ballenger does not opine that the claimant is disabled (11F/1). Instead, Dr. Ballenger noted that he could not corroborate any of the claimant's symptoms with a neurological diagnosis (11F/1). He indicated that a lot of the claimant's symptoms might be functional.,
As indicated parenthetically above, the visit referenced occurred on 9 September 2015. See Tr. 486-88. While the visit note was signed by FNP Warren the following day, Dr. Ballenger did not sign it until 3 December 2015. See Tr. 488. The ALJ's apparent error in characterizing the visit as occurring in December, rather than September, 2015 is harmless, given that both dates fall within the period when Dr. Ballenger opined that plaintiff had disabling limitations and the discrepancy in dates is only 85 days.
A functional disorder is "a disorder characterized by physical symptoms with no known or detectable organic basis." Stedmans Medical Dictionary, entry for "functional disorder," Westlaw at STEDMANS 260010 (last updated Nov. 2014).
As noted, the letter referenced in the note on the 14 June 2016 visit appears to the one at Tr. 513-14.
The ALJ explained that he gave "little weight" to the opinions predating June 2016, which found plaintiff to have disabling limitations:
The undersigned gives the opinions in Exhibits 8F, 9F, and 10F little weight due to inconsistency with the medical evidence. Medical evidence showed that the claimant had 5 out of 5 strength in the extremities, no gross weakness, and normal range of motion in the hip, knees, and ankles in many physical examinations (5F/9, 12; 7F/1-2; 13F/8, 13). Furthermore, medical evidence revealed that the claimant had 4 out of 5 grip strength on the right and 4 out of 5 on the left (6F/3). Little weight is also given to the opinion in Exhibit 9F due to the opinion's vague language and ambiguous restriction. Additionally, the opinion in Exhibit 11F contradicts the opinions in Exhibits 8F, 9F, and 10F. For these reasons, the undersigned gives the opinions in Exhibits 8F, 9F, and 10F little weight.Tr. 21 ¶ 5.
The ALJ then explained that he gave "some weight" to Dr. Ballenger's June 2016 opinion:
Dr. Ballenger's opinion in 11F is given some weight given its consistency with medical evidence showing that the claimant is not disabled. However, the undersigned does not give more weight because of the inconsistency with Dr. Ballenger's other opinions. Thus, the undersigned gives this opinion some weight.Tr. 22 ¶ 5.
The court finds that the ALJ's assessment of Dr. Ballenger's opinions is supported by substantial evidence. This evidence includes the evidence he cites in discussing Dr. Ballenger's opinions (see Tr. 21-22 ¶ 5), as well as the other pertinent benign findings he discusses in his analysis of plaintiff's RFC (see Tr. 17-19 ¶ 5).
The ALJ's assessment of Dr. Ballenger's opinions is also based on applicable legal standards. It reflects consideration of, among other salient factors, the degree of consistency of Dr. Ballenger's opinions with each other; the degree of consistency of Dr. Ballenger's opinions with other medical evidence; the length and nature of the treating relationship between Dr. Ballenger and plaintiff (see, e.g., Tr. 18 ¶ 5 (ALJ's reference to Dr. Ballenger's first visit with plaintiff, in July 2015 (Tr. 495 (Ex. 8F, p. 17)))); Dr. Ballenger's specialization as a neurologist (see, e.g., Tr. 19 ¶ 5 (ALJ's reference to Dr. Ballenger's inability to corroborate plaintiff's symptoms with a "neurological diagnosis" at the 14 June 2016 visit)); and the specificity and clarity of the opinions (see Tr. 21 ¶ 5 (noting the "vague language and ambiguous restriction" in the 23 Mar. 2016 visit note (Tr. 504 (Ex. 9F, p. 1)))).
Additionally, each page of the office visit notes (not including reports on test results) bears the heading "Coastal Carolina Neurology, P.A." See Tr. 479-96, 504-06, 511-12.
The court finds proper the ALJ, on the one hand, discounting Dr. Ballenger's pre-June 2016 opinions while, on the other hand, citing these same opinions as a basis for discounting Dr. Ballenger's June 2016 opinions. Given the seeming discrepancy in the opinions Dr. Ballenger expressed, it was reasonable for the ALJ to find him discredited as a source with respect to the June 2016 opinions.
The ALJ did not, of course, base his RFC determination solely on his assessment of Dr. Ballenger's opinions. He explained his RFC determination as to plaintiff's physical impairments as follows:
Thus, the [RFC] assessment accounts for the claimant's physical impairments by limiting her to less than a full range of medium work with postural, manipulative, and environmental limitations. Limiting the claimant to medium work is supported given medical evidence showing that the claimant had 5 out of 5 strength in the extremities, no gross weakness, and normal range of motion in the hip, knees, and ankles in many physical examinations (5F/9, 12; 7F/1-2; 13F/8, 13). Postural limitations are supported given medical evidence showing that the claimant had a spastic gait in many physical examinations (23F/3, 6, 8). Manipulative and environmental limitations are supported given medical evidence showing that the claimant had a tremor in her right arm in many physical examinations (5F/22; 8F/2; 19F/3-4; 23F/3, 6, 8, 12-13, 14-15).Tr. 19 ¶ 5. This analysis, which was not directly challenged by plaintiff, is proper.
The ALJ provided a similar explanation of his RFC determination regarding plaintiff's mental impairment, anxiety disorder:
Mental status examinations throughout the period at issue showed generally benign findings, which is inconsistent with the severity of the claimant's allegations. In
June 2015, mental status examination findings revealed that she was anxious (5F/20). However, she displayed good insight and judgment (5F/20). Mental status examinations from October 2015 through July 2016 showed that the claimant had a normal mood, affect, memory, and judgment (5F/3; 13F/4, 8). In August 2016, the claimant claimed that she had very bad panic attacks (17F/2). Mental status examination findings revealed that she had a depressed mood, impaired short-term memory, and slow psychomotor activity (17F/3-4). However, she also demonstrated a normal affect, goal directed thought process, focused attention, adequate judgment, normal language, and average cognition (17F/3-4). In October 2016, the claimant complained of anxiety and showed an impaired short-term memory in the mental status examination (24F/6). However, she also demonstrated a stable mood, normal affect, adequate judgment, goal directed thought process, and average cognition (24F/6). In November 2016, the claimant complained of anxiety (24F/1). Although she demonstrated a depressed mood, she also had a normal affect (24F/2). Although she had an impaired short-term memory, she also possessed a goal directed thought process, focused attention, fair judgment, present insight, and normal language (24F/2). Thus, the [RFC] assessment accounts for the claimant's anxiety by limiting her to no production rate paced work. In addition, she is limited to frequent changes to the work setting and the manner or method of performing the assigned work.Tr. 19-20 ¶ 5. This analysis was also not directly challenged by plaintiff and is proper.
The court concludes that the ALJ's RFC determination is supported by substantial evidence and based on applicable legal standards. It accordingly rejects plaintiff's challenge to the RFC determination.
The court has considered whether the ALJ erred by not ordering a consultative psychological evaluation of plaintiff, pursuant to 20 C.F.R. §§ 404.1512(b) and 1519, in order to more fully develop the record regarding the cause of plaintiff's tremors and other symptoms, including specifically whether they result from conversion disorder, a psychological condition not explained by neurological disease that produces physical symptoms. See Stedmans Medical Dictionary, entry for "conversion disorder," Westlaw at STEDMANS 259850 (last updated Nov. 2014); Am. Psych. Ass'n, Diagnostic and Statistical Manual of Mental Disorders, entry for "Conversion Disorder (Functional Neurological Symptom Disorder," 318-22 (5th ed. 2013); Mayo Clinic, Patient Care & Health Information/Diseases & Conditions, entry for "Functional neurologic disorders/conversion disorder," https://www.mayoclinic.org/diseases-conditions/conversion-disorder/symptoms-causes/syc-20355197 (last visited 19 Nov. 2018). The court ultimately concluded that the ALJ did not err because: plaintiff does not allege that the ALJ erred in this respect; she does not claim that she has conversion disorder; she was not diagnosed with conversion disorder, cf. Williams v. Berryhill, 682 F. App'x 665, 668-69 (10th Cir. 2017) (remanding, in part, because of ALJ's failure to obtain a consultative examination for conversion disorder where plaintiff had been diagnosed with it); no medical source recommended that she be examined by a psychologist or psychiatrist for conversion disorder, although on 16 Oct. 2015 a physician's assistant at plaintiff's primary care provider, mistakenly believing that Dr. Ballenger was closing his practice, recommended that she be evaluated by another neurologist for her tremors and migraines after noting with regard to her tremors "Psychogenic vs. TBI [i.e., traumatic brain injury] related vs. conversion disorder" (Tr. 436), cf. Kamer v. Colvin, No. 1:16cv3-CAS, 2017 WL 1944110, at *8-12 (N.D. Fla. 9 Jan. 2017) (remanding for consultative psychological evaluation for possible conversion disorder where, although there was no diagnosis of it, a consulting orthopedist opined that a psychological examination was the best means of determining whether plaintiff had it); and the sources who evaluated her included two psychologists, albeit nonexamining state agency consulting psychologists, Arne Newman, Ph.D. ostensibly in December 2015 (see Tr. 110-11 (discussed by ALJ at Tr. 15-16 ¶ 5)) and Ken M. Wilson, Psy.D. in February 2016 (see Tr. 124-26 (discussed by ALJ at Tr. 16 ¶ 5)), the latter of whom included in his evaluation reference to the foregoing notation by the physician's assistant regarding conversion disorder (see Tr. 124 ("Psychogenic tremor vs TBI vs Conversion D/o.")). --------
III. ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS
A. Applicable Legal Principles
As noted, symptoms are defined under the Regulations as a claimant's own descriptions of his impairments. 20 C.F.R. § 404.1528(a). The ALJ must employ a two-step process for evaluating a claimant's symptoms:
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult . . . .Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2; 20 C.F.R. § 404.1529(b), (c)(1); Craig, 76 F. 3d at 594-95.
In evaluating a claimant's symptoms at step two, the ALJ must consider "the entire case record." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. § 404.1529(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence . . . ."); Craig, 76 F. 3d at 595. The evidence and factors that are considered, when relevant, include: the claimant's history; medical signs and laboratory findings; statements from the claimant, the claimant's treating and nontreating sources, and other persons about how the claimant's symptoms affect the claimant, including medical opinions; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; any measures the claimant uses or has used to relieve his pain or other symptoms; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *9.
B. Analysis
Plaintiff testified to the effect that her impairments are disabling. See Tr. 37-50, 58-96. The ALJ summarized her allegations as follows:
The claimant alleged an inability to work because of her seizures, tremors, and migraines (2E/2). She reported difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, stair climbing, seeing, and using hands (3E/6). She claimed that her right side shakes all the time (Hearing). She reportedly has muscle atrophy and paresis of the right leg (Hearing). She alleged that her right hand shakes all the time (Hearing). She claimed that she bumps into things because of balance problems (Hearing). She alleged she has a history of seizures (Hearing). She noted that her headaches cause nausea, throbbing, and blurry vision (Hearing). The claimant also reportedly has problems with memory, completing tasks, concentration, understanding, and following instructions (3E/6). She allegedly has a constant level of anxiety and medication does not help (Hearing).Tr. 17 ¶ 5.
The ALJ made the step one finding that "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the above alleged symptoms." Tr. 17 ¶ 5. However, at the second step, the ALJ found
the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.Tr. 17 ¶ 5.
The ALJ summarized his analysis regarding plaintiff's seizure and associated impairments as follows:
The claimant alleged an inability to work because of her seizures, tremors, and migraines (2E/2). However, the record is inconsistent with the severity of the claimant's allegations. The record showed that the claimant responded well to conservative treatment limited to medication with respect to her tremors and migraines. (6F/4; 8F/11). Moreover, she did not routinely present to the emergency room or was hospitalized for seizures, tremors, and migraines. Despite alleging that her right hand shook all the time, the claimant indicated that she could engage in activities of daily living such as driving, doing laundry, preparing simple meals, and completing personal care without assistance (Hearing; 3E). The claimant's ability to engage in these activities is inconsistent with the severity of her allegations. Although the claimant alleged a history of seizures, her clinical findings all demonstrated normal findings (2F/4, 8; 5F/5-6, 12; 14F/2). The claimant could not reproduce her seizures in a clinical setting. Clinicians also diagnosed her with questionable seizure activity (9F/1). Thus, the record is inconsistent with the severity of the claimant's allegations.Tr. 17 ¶ 5.
The ALJ summarized his assessment of plaintiff's statements regarding her mental impairment as follows:
With regards to the claimant's mental impairment, she presented with anxiety following the May 2015 motor vehicle accident (5F/22). She alleged that her anxiety is constant and medication does not help (Hearing). However, the record is inconsistent with the severity of the claimant's allegations. The [record] showed that the claimant received conservative treatment limited to medication for her mental impairment. Moreover, the record does not reveal that she routinely presented to the emergency room or was hospitalized due to anxiety. Physicians did not routinely note the claimant's anxiety as an impairment requiring extensive treatment. Thus, the record is inconsistent with the severity of the claimant's allegations.Tr. 19 ¶ 5.
Plaintiff argues that the ALJ failed to consider the factors in Social Security Ruling 16-3p for evaluation of a claimant's symptoms. The contention is patently baseless. The ALJ discussed plaintiff's activities of daily living, the treatment in the form of medication she received, the absence of other treatment prescribed for her, the frequency and intensity of her alleged symptoms, and relevant medical evidence. All are proper factors under Social Security Ruling 16-3p, as well as the Regulations, 20 C.F.R. § 404.1529(c). The evidence cited by the ALJ constitutes substantial evidence supporting his analysis of plaintiff's symptoms.
Plaintiff emphasizes her contention that her activities of daily living are extremely limited. But, as discussed, the ALJ properly found that her activities of daily living are not as limited as she alleges. See Tr. 17 ¶ 5; see also Tr. 14 ¶ 4 (ALJ's findings at step three to the effect that plaintiff's limitations in various daily activities are mild); 15 ¶ 4 (same); 16 ¶ 4 (ALJ's crediting opinion of nonexamining state agency consulting psychologist that plaintiff's restrictions in activities of daily living are mild). Plaintiff's argument on her activities of daily living amounts largely to a request to the court to reweigh the evidence. This, of course, the court may not properly do. See Craig, 76 F.3d at 589.
The court concludes that the ALJ's assessment of plaintiff's statements regarding her impairments is proper. It accordingly rejects plaintiff's challenge to this assessment.
CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 16) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 14) for judgment on the pleadings be DENIED, and the final decision of the Commissioner be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 3 December 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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.
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).
Any response to objections shall be filed within 14 days after filing of the objections.
This 19th day of November 2018.
/s/_________
James E. Gates
United States Magistrate Judge