Opinion
No. 7:18-CV-00161-FL
07-16-2019
Kenneth Krawcheck, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Kenneth Krawcheck instituted this action in August 2018 to challenge the denial of his application for social security income. Krawcheck claims that Administrative Law Judge ("ALJ") Tammy Georgian erred in evaluating the medical opinion evidence. Krawcheck also challenges ALJ Georgian's authority to issue a decision under the Appointments Clause. Both Krawcheck and Defendant Andrew Saul, Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 11, 17.
After reviewing the parties' arguments, the court has determined that ALJ Georgian erred in her determination. Substantial evidence does not support ALJ Georgian's decision to assign no weight to the opinion of Krawcheck's treating provider. And Krawcheck's Appointments Clause argument establishes a basis for remand. The undersigned magistrate judge therefore recommends that the court grant Krawcheck's motion, deny the Commissioner's motion, and remand the matter to the Commissioner's for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In July 2014, Krawcheck applied for disability benefits alleging a disability that began in July 2012. After his claim was denied at the initial level and upon reconsideration, Krawcheck appeared at a hearing before ALJ Georgian to determine whether he was entitled to benefits. ALJ Georgian determined that Krawcheck was not entitled to benefits because he was not disabled. Tr. at 17-28.
ALJ Georgian found that Krawcheck had severe impairments of lumbar degenerative disc disease and chronic narcotic use. Tr. at 19. ALJ Georgian concluded that Krawcheck's impairments, alone or in combination, did not meet or equal a Listing impairment. Tr. at 21.
ALJ Georgian determined that Krawcheck had the residual functional capacity ("RFC") to perform a reduced range of light work. Id. He can frequently sit, stand, and walk. Id. Krawcheck can frequently climb ramps and stairs but he can never climb ladders, ropes, or scaffolds. Id. And he can frequently stoop, kneel, crouch, and crawl. Id. Finally, Krawcheck must avoid workplace hazards such as unprotected heights and moving machinery. Id.
ALJ Georgian concluded that Krawcheck could perform his past relevant work as an attorney. Tr. at 26-27. Alternatively, considering his age, education, work experience, and RFC, ALJ Georgian found that other jobs existed in significant numbers in the national economy that Krawcheck could perform. Tr. at 27. These include questioned document examiner and title searcher at the semi-skilled, light level; hand packer/inspector, counter clerk, and furniture rental consultant at the unskilled, light level; and order clerk, telephone information clerk, and call out operator at the unskilled, sedentary level. Tr. at 28. Thus, ALJ Georgian found that Krawcheck was not disabled. Id.
After unsuccessfully seeking review by the Appeals Council, Krawcheck began this action in August 2018. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Krawcheck v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Krawcheck has a history of back pain. A March 2009 MRI of his lumbar spine showed degenerative disc disease with disc bulging and moderate facet degenerative joint disease contributing to severe bilateral foraminal stenosis. Tr. at 671-72.
Krawcheck next sought care in May 2011 when he visited Dr. Cynthia Blalock for worsening pain. Tr. at 372. An examination found tenderness but he had intact strength. Id. An MRI later that month revealed a large central disc protrusion at L5-S1, which caused focal effacement of the thecal sac and lateral displacement of both central S1 nerve roots. Tr. at 371. There was also a disc protrusion at L4-L5 that likely affected the exiting L4 nerve root and caused mild central canal stenosis. Id.
Krawcheck saw Dr. Blalock later that month and reported that methadone reduced his pain but made him drowsy. Tr. at 368. He also noted that certain positions aggravated his pain. Id. An examination found tenderness. Tr. at 365. Follow-up visits throughout 2011 and 2012 reflect that Krawcheck continued to have good pain relief from methadone although he had tenderness, reduced range of motion, and experienced sleep difficulties. Tr. at 338-39, 344, 352, 356.
In April 2013, Krawcheck began treatment with Dr. Harrison Frank. Tr. at 572. During his visits throughout 2013, Krawcheck displayed tenderness, limited range of motion, and positive signs of facet loading pain. Tr. at 514, 523. At follow-up visits with Dr. Frank in 2014, Krawcheck reported he was doing well with methadone but continued to show tenderness and bilateral facet loading pain. Tr. at 489. A spinal x-ray confirmed retrolisthesis of his L5 vertebra on his S1 vertebra. Tr. at 483.
Three months later, Krawcheck reported that his baseline pain was fine with medication but aggravated by prolonged standing. Tr. at 455. An examination found tenderness and increased pain with forward flexation, extension, and lateral bending. Id. The next month, Krawcheck again reported that methadone controlled his pain unless he engaged in activities like prolonged standing. Tr. at 434. An examination found tenderness and pain with range of motion but intact strength. Id.
In July 2014, Krawcheck noted increased pain with prolonged sitting and standing. Tr. at 426. An examination again found tenderness and pain with flexation and extension. Id.
Five months later, Dr. Feras Tanta performed a consultative examination. Tr. at 583-84. Krawcheck rated his pain as four out of ten with medication, and reported sitting or standing for more than 15 minutes aggravated his pain. Id. He also claimed to experience medication side effects which prevented him from working as an attorney. Id. An examination noted limited range of motion, intact strength, numbness, and an inability to squat. Id. Dr. Tanta assessed Krawcheck with chronic low back pain with narcotic use, which had side effects. Id.
In 2015 and 2016, after his December 2014 date last insured, Krawcheck continued treatment with Dr. Frank. Tr. at 594-96, 600, 603, 606, 609. An October 2016 MRI revealed multi-level disc bulging and stenosis. Tr. at 623.
Five months later, Krawcheck rated his baseline pain levels as two out of ten and reported pain exacerbated by standing, walking, and physical activity. Tr. at 656. Krawcheck also noted that he had trouble remaining in one position for any length of time. Id. An examination showed tenderness, intact motor strength, and positive bilateral Spurling's test. Tr. at 657. Providers assessed low back pain with lumbosacral spondylosis and degenerative disc disease. Id. Examinations later that year noted ongoing low back pain with tenderness and limited range of motion with flexation, extension, and rotation. Tr. at 651, 653.
Dr. Frank issued a Medical Source Statement in June 2017, two and a half years after Krawcheck's date last insured. Tr. at 659-62. Dr. Frank's assessment addressed Krawcheck's functioning since April 2013. Id. Dr. Frank noted that Krawcheck had a history of low back pain, with MRIs showing disc protrusions, annular tear, facet arthropathy, and nerve root involvement. Id. Dr. Frank went over Krawcheck's examination findings. Id. Dr. Frank observed that Krawcheck had success at managing pain with methadone and avoiding exacerbating activities like prolonged sitting or standing, which put pressure on his nerves and inflamed joints. Id. Dr. Frank found that Krawcheck's pain tracked his findings. Id.
Because of his pain, Krawcheck could sit or stand for only 20 minutes, at which point he would need to move about or recline to relieve his pain symptoms. Id. Dr. Frank noted that because of pain and drowsiness from medication, Krawcheck needed to lie down at unpredicted intervals. Id. Dr. Frank also observed that methadone impaired Krawcheck's ability to maintain alertness, attend to tasks, and maintain concentration. Id.
D. Medical Opinion Evidence
Krawcheck contends that ALJ Georgian erred in giving no weight to the assessment of his treating specialist, Dr. Frank. The Commissioner asserts that ALJ Georgian's reasons for according no weight to this provider's opinion is supported by the record. The undersigned cannot conclude that substantial evidence supports ALJ Georgian's reasons for assigning no weight to this assessment.
"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), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. 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.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given 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), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider 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), 416.927(c)(2)-(6).
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." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 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.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining 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 non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 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 issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 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 must 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.").
As noted above, Dr. Frank opined that Krawcheck could sit or stand for only 20 minutes, needed to lie down at unpredicted intervals, and had an impaired ability to maintain concentration because of medication side effects. Although he made his assessment in June 2017, Dr. Frank remarked that his findings related back to when he began treating Krawcheck in April 2013.
ALJ Georgian gave no weight to Dr. Frank's statement. Tr. at 26. She observed that Dr. Frank's statement failed to address specific functional limitations caused by Krawcheck's impairments. Id. And ALJ Georgian noted that Dr. Frank submitted his statement two and a half years after the relevant period at issue. Id.
Krawcheck contends that ALJ Georgian erred in discounting Dr. Frank's statement because it was made after his date last insured. Relating his findings back to April 2013, Krawcheck contends that Dr. Frank's opinion addressed the period at issue before ALJ Georgian. And contrary to ALJ Georgian's conclusion, Krawcheck contends that Dr. Frank made specific functional limitations.
Although Dr. Frank offered his opinion after the relevant period, it may be relevant. Fourth Circuit case law directs that the Commissioner "must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier and progressive degeneration.'" Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir. 2012). "[M]edical records from a later time period may be probative and relevant to establishing disability in an earlier time period if there is 'linkage' between the later treatment and the impairments at issue in the claimant's disability claim." Bruton v. Berryhill, No. 8:16-1006-RMG, 2017 WL 1449542, at *6 (D.S.C. Apr. 24, 2017) (citing Bird, 699 F.3d at 340-41). So ALJ Georgian's reason to discount this opinion from Dr. Frank as untimely, where he specifically related back to the period at issue, is unconvincing.
But ALJ Georgian also rejected Dr. Frank's assessment because it did not address Krawcheck's specific functional limitations. Krawcheck points out, however, that Dr. Frank sated that he could sit and stand for only 20 minutes, after which he would need to move about or recline. This is a specific restriction addressing Krawcheck's ability to perform exertional activities. So ALJ Georgian erred in basing her consideration on this reason as well.
Dr. Frank also found that Krawcheck had an impaired ability to maintain alertness and concentration, but did not further explain the capacity this mental functioning was curtailed. So the undersigned agrees with ALJ Georgian's conclusion that Dr. Frank's statement offers no specific mental functioning limitations stemming from Krawcheck's non-exertional impairments.
The Commissioner also argues that Dr. Frank's opinion does not deserve more weight because his treatment notes do not support the degree of limitation he found. For example, Dr. Frank's records reflect that methadone was effective in treating Krawcheck's pain. Krawcheck once rated as two out of ten and another time he reported that he was pain-free. Krawcheck often reported that he was doing well overall. And while he displayed tenderness and reduced range of motion, Krawcheck's examinations also showed normal gait and negative results on straight leg raise testing. These findings, the Commissioner contends, do not support restrictive limitations Dr. Frank assessed.
But the Commissioner's argument fails because ALJ Georgian did not cite a lack of consistency with treatment notes or Krawcheck's success at managing his pain with medication as reasons to discount Dr. Frank's conclusions. While the Commissioner's argument may be accurate, because the Commissioner bases his position on reasons which ALJ Georgian did not offer, the undersigned declines his post hoc rationalization to sustain ALJ Georgian's determinations.
In sum, the undersigned cannot find that ALJ Georgian's articulated reasons to justify assigning no weight to the opinion of Dr. Frank, Krawcheck's treating provider, have the support of substantial weight. Having established error in this issue, Krawcheck's argument has merit and warrants remand.
E. Appointments Clause
Krawcheck raises a challenge to the appointment of the administrative law judge ("ALJ") who decided his claim because the ALJ was not appointed in compliance with the requirements of the Appointments Clause of the United States Constitution, and invokes as support the Supreme Court's recent decision in Lucia v. SEC, 585 U.S. —, 138 S. Ct. 2044 (2018). In Lucia, the Court found that the Securities and Exchange Commission's ALJs are inferior officers of the United States and must be properly appointed in accordance with the Appointments Clause. Lucia, 138 S. Ct. at 2049, 2051-54. The Court also held that "'one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case' is entitled to relief[.]" Id. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
The Commissioner does not appear to dispute the merits of Krawcheck's Appointments Clause challenge, but only contests whether that claim has been "timely" raised. The Commissioner raises arguments identical to those raised in Bradshaw v. Berryhill, 372 F. Supp. 2d 349 (E.D.N.C. Mar. 26, 2019), appeal filed, No. 19-1531 (4th Cir. May 17, 2019). In Bradshaw, the undersigned determined that there is no clear statutory, regulatory, or judicial authority requiring claimants to raise a constitutional issue before the Social Security Administration to preserve the matter for review in federal court. Because the circumstances here squarely align with Bradshaw, thus rationale underlying the Bradshaw decision applies with equal force to the instant appeal, and is incorporated here in full.
As a result, Krawcheck's Appointments Clause challenge to ALJ Georgian is a meritorious argument that warrants remand.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Krawcheck's Motion for Judgment on the Pleadings (D.E. 11), deny Saul's Motion for Judgment on the Pleadings (D.E. 17), and remand the matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: July 16, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE