Opinion
No. 7:18-CV-130-D
06-03-2019
JULIUS ALEXANDER KERSEY, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's motion for judgment reversing or modifying the Commissioner's decision [DE-13] pursuant to 42 U.S.C. § 405(g) and Defendant's motion for judgment on the pleadings [DE-15] pursuant to Fed. R. Civ. P. 12(c). Claimant Julius Alexander Kersey ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income ("SSI") payments. Claimant responded to Defendant's motion [DE-18], and the time for filing a reply has expired. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's motion for judgment reversing or modifying the Commissioner's decision be allowed, Defendant's motion for judgment on the pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI on August 31, 2011, alleging disability beginning August 31, 2011. (R. 291, 431-39). His claim was denied initially and upon reconsideration. (R. 252-87). A hearing before the Administrative Law Judge ("ALJ") was held on August 5, 2013, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 175-226, 291). On October 16, 2013, the ALJ issued a decision denying Claimant's request for benefits. (R. 288-304). On March 30, 2015, the Appeals Council remanded the claim to the ALJ for further administrative proceedings. (R. 305-09).
A second administrative hearing before a different ALJ was held on February 6, 2017, at which Claimant, represented by counsel; Dr. Ronald Devere, M.D., an impartial neurological medical expert; and a vocational expert ("VE") appeared and testified. (R. 21, 47-115). On July 5, 2017, the ALJ issued a decision denying Claimant's claim. (R. 18-43). Claimant then requested a review of the ALJ's decision by the Appeals Council (R. 428-30), and he submitted additional evidence as part of his request (R. 116-74). The Appeals Council found that the additional evidence did not show a reasonable probability that it would change the outcome of the decision, so it did not consider and exhibit the evidence. (R. 8). The Appeals Council denied Claimant's request for review on May 14, 2018. (R. 7-12). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant alleges the ALJ: (1) failed to consider the results of electromyography ("EMG") testing; (2) improperly weighed the medical opinions; and (3) failed to order a consultative medical examination. Pl.'s Mem. [DE-14] at 5-13.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since August 31, 2011. (R. 24). Next, the ALJ determined Claimant had the following severe impairments: diabetes mellitus with peripheral neuropathy, depression, anxiety, and borderline intellectual functioning. (R. 24-25). The ALJ also found Claimant had nonsevere impairments of chronic kidney disease, gastroesophageal reflux disease, and headaches. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 25-26). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing himself. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work and that Claimant can stand for a total of three hours, walk for a total of three hours, and sit for a total of six hours in an eight-hour workday; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, and crouch; frequently bilaterally feel, handle, and finger; perform work that does not require exposure to moving mechanical parts and high, exposed places; perform work that does not require the operation of foot pedals; perform work that does not require the operation of a motor vehicle or heavy equipment; perform goal-oriented rather than production-oriented work; perform simple, routine work; have superficial interaction with the general public; and have superficial interaction with supervisors and coworkers. (R. 26-34). In making this assessment, the ALJ found Claimant's statements about his limitations not fully consistent with the evidence. (R. 29). At step four, the ALJ concluded Claimant had no past relevant work. (R. 34). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 35-36).
Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 416.967(b).
V. DISCUSSION
A. The medical opinions
Claimant contends that the ALJ improperly gave significant weight to the opinion of Dr. Devere and little weight to the opinion of Constance Page, P.A. Pl.'s Mem. [DE-14] at 8-13. When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 416.927(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" it is given controlling weight. Id. However, "[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig, 76 F.3d at 590.
The rules for evaluating opinion evidence for claims filed after March 27, 2017 are found in 20 C.F.R. § 404.1520c, but 20 C.F.R. § 404.1527 still applies in this case.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). However, "[a]n ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up 'specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion." Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).
1. Dr. Devere
Dr. Devere testified at the hearing as a medical expert. (R. 56-63). He stated that he had reviewed exhibits 1 through 24F. (R. 57). The ALJ asked Dr. Devere if there was sufficient medical evidence of record for him to have an opinion as to Claimant's physical medical status, and Dr. Devere responded: "Well, sort of, because the records, from the neurologic standpoint, are very, very poor and way, in my opinion, below standard, but I managed to come up with something based on what I found." (R. 57-58). The ALJ asked Dr. Devere to explain what he was able to discern from the records he had. (R. 58). Dr. Devere stated:
the claimant has known diabetes, and the main symptoms that the patient has been having is possible diabetic neuropathy. The diagnosis of neuropathy is based on objection [sic] findings on good neurological exam, which did not exist very much in all these records that were seen, but I was able to scratch out some testing that suggested there is a neuropathy, but unfortunately, a detailed evaluation was not done.(R. 58). Dr. Devere explained that additional testing should have been performed when Claimant was treated at appointments in 2008 and 2010. Id. He concluded, "this gentleman probably has the neuropathy but no way did it meet any listing." (R. 59). He also stated that Claimant "needs to see a neurologist and needs a thorough neurological exam and testing and appropriate medication." (R. 62). Dr. Devere opined that Claimant could lift and carry thirty pounds occasionally and twenty pounds frequently; sit for six hours; stand and/or walk for three hours; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally kneel or crouch; and never work around moving machinery or unprotected heights. (R. 60-63). Dr. Devere said that Claimant "needs a good exam, which he's not had. That's the problem." (R. 63). In summary, Dr. Devere testified that there is objective evidence of neuropathy in the record, but a proper exam had yet to be conducted.
Page 62 of the record is page 16 of the transcript, and page 63 of the record is page 18 of the transcript. Page 17 of the transcript is missing, so the court is unable to review Dr. Devere's full testimony.
The ALJ gave significant weight to Dr. Devere's opinion because he "has specialized knowledge of the effects of neuropathic deficits, was able to review all of the material evidence, and his opinion is reasonably consistent with that evidence." (R. 31). However, in discussing Dr. Devere's opinion, the ALJ did not mention Dr. Devere's concern that appropriate testing had not yet been performed. Id.
Dr. Devere mentioned at least four times that Claimant needed better testing, and because of the lack of proper testing, Dr. Devere was only "sort of able to form an opinion and "scratch out" some conclusions. (R. 58-63). Dr. Devere repeatedly qualified his opinion with his view that the record lacked proper testing. Id. Instead of noting that qualification, the ALJ relied upon Dr. Devere's opinion as if it were based on a complete record, writing that Dr. Devere "was able to review all of the material evidence, and his opinion is reasonably consistent with that evidence." (R. 31). There are "specious inconsistencies" in the ALJ's discussion of Dr. Devere's opinion, which does not mention Dr. Devere's misgivings, and Dr. Devere's actual testimony, which is replete with concerns and qualifications. See Dunn, 607 F. App'x at 267. Because the ALJ failed to consider that Dr. Devere's opinion was based on what he considered to be an inadequate record, the court is unable to trace the ALJ's reasoning in giving the opinion significant weight. Accordingly, the ALJ erred in weighing Dr. Devere's opinion.
2. Ms. Page
In July 2013, Ms. Page wrote that Claimant has "Diabetes type I with peripheral neuropathy. Patient is unable to feel his feet and falls frequently. Patient has neuropathy in hands and unable to grasp items/drops things frequently." (R. 784). She opined that he can stand or walk for less than two hours and sit for about two hours in an eight hour workday, and he would need to alternate between sitting, standing, and walking at will. Id. Ms. Page stated that he can occasionally lift and carry two pounds, rarely lift and carry ten pounds, and never lift or carry twenty pounds. (R. 785). He could rarely use his hands to grasp and turn objects, rarely use his fingers for fine manipulations, and rarely use his arms for reaching. Id.
The ALJ gave Ms. Page's opinion little weight because "Dr. Devere's assessment was more consistent with the overall evidence of record and as a neurologist, he has specialized knowledge of the effect of the claimant's neuropathy on his functioning. In light of Dr. Devere's assessment, Ms. Page's opinion is inconsistent with the evidence of record regarding the claimant's functioning." (R. 31-32).
The ALJ discounted Ms. Page's opinion because it was inconsistent with Dr. Devere's, and as noted above, the ALJ's discussion of Dr. Devere's opinion is insufficient in that it fails to mention the numerous concerns and reservations Dr. Devere expressed regarding the record. Because the ALJ based his discussion of Ms. Page's opinion on his discussion of Dr. Devere's, and because the court is unable to trace the ALJ's reasoning with regards to Dr. Devere's opinion, it is likewise unable to trace the ALJ's reasoning with regards to Ms. Page's opinion. Remand is recommended for the ALJ to discuss the entirety of Dr. Devere's opinion and whether Ms. Page's opinion is inconsistent with Dr. Devere's full opinion.
B. The March 2017 EMG Test
On March 28, 2017, more than one month after the hearing, Claimant underwent EMG testing. (R. 1255-65). Claimant contends the ALJ erroneously failed to mention the results in his decision. Pl.'s Mem. [DE-14] at 5-6; Pl.'s Reply [DE-18] at 1-3. The conclusion from the EMG test was: "Abnormal study. There is electrodiagnostic evidence of a severe length dependent axonal polyneuropathy affecting sensory more than motor nerves with active denervation and chronic motor unit remodeling as can be seen in diabetic neuropathy. Clinical correlation is advised." (R. 1265). The ALJ did not note those findings in his decision, but they were incorporated into the record. (R. 18-43).
The regulations require the ALJ to consider all evidence in the record when making a disability determination. See 20 C.F.R. § 416.920(a)(3); id. § 416.945(a)(3) ("We will assess your residual functional capacity based on all of the relevant medical and other evidence."). However, "there is no rigid requirement that an ALJ discuss or cite in the written decision each piece of medical evidence considered in reaching that decision." Tarpley v. Astrue, No. 5:08-CV-271-FL, 2009 WL 1649774, at *2 (E.D.N.C. June 1, 2009); see also Burnette v. Astrue, No. 2:08-CV-9-FL, 2009 WL 863372, at *3 (E.D.N.C. Mar. 24, 2009) (holding that there is no requirement that the ALJ "must discuss every piece of evidence considered in his opinion"); Solvey v. Colvin, No. 7:12-CV-347-BO, 2014 WL 555665, at *1 (E.D.N.C. Feb. 11, 2014). Rather, the ALJ's opinion must contain "sufficient reasons for all material findings of fact and conclusions of law that the reviewing court can discern what the ALJ did and why he did it." Redmond v. Astrue, No. 4:08-CV-14-FL, 2009 WL 863587, at *3 (E.D.N.C. Mar. 24, 2009) (citations omitted).
The ALJ is not required to expressly discuss the EMG test results, but the ALJ must thoroughly consider Claimant's neuropathy. Tarpley, 2009 WL 1649774, at *2 (holding that even though "the ALJ did not expressly discuss plaintiff's EMG results[,]" he did not err because he otherwise "adequately considered plaintiff's nerve damage"). As discussed above, the ALJ did not adequately consider Dr. Devere's opinion on Claimant's neuropathy because the ALJ did not discuss Dr. Devere's concerns regarding the lack of testing. (R. 56-63). The EMG test is likely relevant to a full discussion of Dr. Devere's opinion; accordingly, it is recommended that this issue receive additional consideration on remand. See Jones v. Astrue, No. 5:11-CV-206-FL, 2012 WL 3580482, at *8 (E.D.N.C. Apr. 19, 2012) ("Because this court finds that remand on the issue of the treating physician's opinion will affect the remaining issues raised by Claimant, it does not address those arguments."), adopted by 2012 WL 3580054 (E.D.N.C. Aug. 17, 2012).
C. The consultative examination
Claimant contends that the ALJ erred in failing to order a consultative examination because Dr. Devere stated that the record was inadequate. Pl.'s Mem. [DE-14] at 9. An ALJ may order a consultative examination if he "cannot get the information we need from [the claimant's] medical sources," "to try to resolve an inconsistency in the evidence[,] or when the evidence as a whole is insufficient to support a determination or decision." 20 C.F.R. § 416.919a.
Remand is recommended for the ALJ to further address Dr. Devere's concern that the record is inadequate, and that discussion ought to contain a decision as to whether the evidence is in fact sufficient to support a determination of disability or, as Dr. Devere states, further testing is necessary. Like the March 2017 EMG test, it is recommended that this issue receive additional consideration on remand. See Jones, 2012 WL 3580482, at *8.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment Reversing or Modifying the Commissioner's Decision [DE-13] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-15] be DENIED and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until June 17, 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir.
1985).
Submitted, this the 3d day of June 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge