Opinion
5:22-CV-91-D
07-07-2023
RASHUN LYONS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLYA. SWANK, United States Magistrate Judge
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Rashun Lyons (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for a period of disability and disability insurance benefits (“DIB”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be granted, Defendant's Motion for Judgment on the Pleadings [DE #19] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
S TATEMENT OF THE CASE
Plaintiff applied for DIB on May 1, 2020, with an alleged onset date of January 23, 2019. (R. 15, 170-76.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 15, 63, 75, 101-02.) A telephonic hearing was held on October 18, 2021, before Administrative Law Judge (“ALJ”) Vincent Hill, who issued an unfavorable ruling on November 15, 2021. (R. 1562.) On January 4, 2022, the Appeals Council denied Plaintiff's request for review. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. On March 10, 2022, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
Plaintiff, through counsel, amended the alleged onset date to July 28, 2020. (R. 210.)
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits 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). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). “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, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). “If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act (“the Act”). As a preliminary matter, the ALJ found Plaintiff meets the insured status requirements of the Act through December 31, 2025. (R. 17.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since July 28, 2020. (Id.) Next, the ALJ determined Plaintiff has the severe impairments of post-traumatic stress disorder (PTSD), anxiety disorder, bipolar II disorder, and pulmonary embolus. (Id.)
At step three, the ALJ concluded Plaintiff's impairments are 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, App. 1. (R. 18.) The ALJ expressly considered Listings 12.04, 12.06, and 12.15, and cardiovascular disorders described in Listing 4.00 and related listings. (R. 19-21.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff has
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(c) except, she must avoid concentrated exposure to loud noise levels and respiratory irritants, such as fumes, dust, odors, gases, and poorly ventilated areas. She is able to work with levels of illumination similar to that found in typical office settings but may not work in sustained, direct sunlight. She is capable of performing simple, routine tasks and maintaining attention, concentration, persistence, or pace to stay on task for 2-hour periods during a normal 8-hour workday, as required to perform such tasks. She requires a low-stress work setting, further defined as work that is not production-pace or quotabased, rather a goal-oriented job primarily dealing with things as opposed to people, with no more than occasional interaction with the public, supervisors, and coworkers, but no work with the public as a component of the job, such as cashier, sales, or negotiations, however, incidental/casual contact is not precluded. She is expected to be absent from work once per month and allowed to be off-task up to 10 percent of the time in a workday, outside of normal breaks, due to symptoms of migraines.(R. 21 (footnote omitted).) In making this assessment, the ALJ stated that he considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. § 404.1529 and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not reasonably consistent with the clinical findings and other evidence in the record.” (R. 21-22.)
At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 25.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, namely: routing clerk (DOT #222.587-038), office helper (DOT #239.567-010), and mail clerk (DOT #209.687-026). (R. 26-27.) The ALJ concluded that Plaintiff has not been disabled under the Act from July 28, 2020, Plaintiff's alleged onset date, through the date of the decision. (R. 27.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by
(A) failing to explain why substantial weight was not afforded to the Department of Veterans Affairs (VA) 100% disability rating, in contravention of Bird v. Comm'r of SSA, 699 F.3d 337, 343 (4th Cir. 2012) (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #17] at 7-10); and
(B) failing to properly evaluate the medical opinions of examining medical sources, namely, a VA Ph.D psychologist and family nurse practitioner who completed examinations and evaluations of Plaintiff in connection with her VA disability benefits (id. at14).
As to the first argument, the Fourth Circuit recently held that Bird's holding regarding the weight assigned to VA disability ratings does not apply to claims filed after the new Social Security regulations took effect in March 2017. Rogers v. Kijakazi, 62 F.4th 872, 879-80 (4th Cir. 2023). Accordingly, Plaintiff's first argument must be rejected.
Plaintiff filed the instant brief before oral argument in Rogers and while this issue had been percolating in the district courts.
As to the second argument, the Commissioner contends ALJ Hill “correctly considered [P]laintiff's VA-associated evidence, including treatment records and medical opinions.” (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #20] at 18; see also id. at 910 (noting that the ALJ cited R. 296, 317-19, 324-26, 349, 413, 725, 959, 969, 1101, 1301, 1323, 1450-1674).) The undersigned disagrees with the Commissioner for the reasons explained below and, therefore, recommends remand.
Under the Commissioner's new regulations, ALJs must still “consider all of the supporting evidence underlying” another agency's disability related decision in accordance with 20 C.F.R. § 404.1513(a)(1)-(4). 20 C.F.R. § 404.1504; see also Rogers, 62 F.4th at 878, 881. When evaluating medical opinions, an ALJ must consider factors set forth in 20 C.F.R. § 404.1520c(b), (c)(1)-(5). “The ALJ is not required to explain how she considered each of the relevant factors; instead, when articulating her finding about whether an opinion is persuasive, the ALJ need only explain how she considered ‘the most important factors' of supportability and consistency.” Corbin v. Kijakazi, No. 2:20-CV-60-M, 2022 WL 990487, at *2 (E.D. N.C. Mar. 31, 2022). Generally, and especially as it relates to the extent medical opinions bear on an RFC assessment, the ALJ must explain how the evidence led to the ALJ's conclusions. Arakas v. Comm'r of SSA, 983 F.3d 83, 95 (4th Cir. 2020) (“To pass muster, ALJs must ‘build an accurate and logical bridge' from the evidence to their conclusions.” (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016))); Monroe v. Colvin, 826 F.3d 176, 190-91 (4th Cir. 2016) (explaining how an ALJ's failure to specifically explain the weight assigned to medical opinions precludes review for substantial evidence); see also Mascio, 780 F.3d at 637 (remand is necessary when a reviewing court is “left to guess about how the ALJ arrived at his conclusions”); Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (logical explanation is required in proper RFC analysis); Lail v. Kijakazi, No. 21-2133, 2022 WL 1711809, at *1 (4th Cir. May 27, 2022) (“[T]he driving consideration [in an RFC analysis] is whether the ALJ's analysis allows for meaningful review.” (citing Mascio, 780 F.3d at 636)); SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (ALJ must “explain how any material inconsistencies or ambiguities in the evidence were considered and resolved”).
Dr. Lonnie L. Sansbury, Ph.D, examined Plaintiff on June 18, 2019, in connection with Plaintiff's VA disability benefits application. He wrote a report regarding Plaintiff's mental health, which appears in Exhibit 6F of the administrative record. (R. 1577-83.) Dr. Sansbury found Plaintiff to have functional limitations in tension with those assessed by ALJ Hill. (Id.)
Dr. Sansbury's report appears on pages 128 through 135 of Exhibit 6F.
Nurse Practitioner Claudia A. Thomas Campbell, DNP, FNP-BC, examined Plaintiff on June 18, 2019, in connection with Plaintiff's VA disability benefits application. She wrote a report regarding Plaintiff's migraine headaches, which also appears in Exhibit 6F of the administrative record. (R. 1585-89.) Ms. Campbell found Plaintiff's migraines had functional impact in tension with that assessed by ALJ Hill. (Id.)
Plaintiff also argues that ALJ Hill erred by failing to find at step two that her migraines were a severe impairment. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 12-13.) Plaintiff contends this error was caused by ALJ Hill's failure to properly evaluate Ms. Campbell's examination and report. (Id. at 13.) The undersigned does not address this argument separately.
ALJ Hill addressed the foregoing medical evidence in two places: (i) he referenced portions of Ms. Campbell's report at step two in support of his finding that Plaintiff's migraines were not a severe impairment (R. 18) and (ii) in a paragraph expressing general reservations about VA disability evaluations and stating that opinions contained in these evaluations are “only somewhat persuasive.” (R. 25). This latter explanation from ALJ Hill warrants quotation in full:
I note that the evidence of record contains several VA general medical compensation (C&P) evaluations of various body systems/parts for purposes of VA disability, which occurred between the period of June and August 2019 and were conducted by multiple medical professionals (Ex. 6F). However, SSA regulations require evaluation of the whole person and a determination of the claimant's entire residual functional capacity to perform substantial gainful activity within the world of work. Therefore, while VA C&P evaluations can provide some objective information, as with any objective examination by a medical professional, their utility beyond that with respect [to] the claimant's ability to perform within the world of work, as required by SSA regulations, is only of limited value. Accordingly, such opinions set forth within the various C&P evaluations contained through the record are only somewhat persuasive. Nonetheless, I specifically addressed each severe impairment rated by the VA with appropriate limitations in the residual functional capacity, as supported by the evidence during the relevant period of alleged disability.(R. 25.)
This explanation frustrates meaningful review for several reasons. First, stating that medical opinions from the VA are “somewhat persuasive” does not illuminate which parts of these opinions the ALJ found persuasive and why. See Monroe, 826 F.3d at 191 (explaining how an ALJ's use of “limited weight” and “some weight” to assess medical opinions frustrates review); Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989))). And to whatever extent the court could infer that ALJ Hill implicitly rejected portions of Dr. Sansbury's and Nurse Practitioner Campbell's opinions that conflicted with the RFC assessed by ALJ Hill, that still would not show how ALJ Hill “considered and resolved” the material inconsistencies between the medical opinions and ALJ Hill's RFC assessment as required by SSR 96-8p, 1996 WL 374184, at *7. Second, ALJ Hill's statement that the utility of VA medical evaluations is of “limited value” is, at best, unclear. ALJ Hill appears to be saying that, as a general matter, VA medical opinions expressed in VA disability evaluation processes have only limited value, as he offered no case-specific reasons to discredit Dr. Sansbury's and Nurse Practitioner Campbell's opinions. Such a finding is tantamount to discounting an entire category of medical opinion evidence for reasons not identified in statute or regulation or tied to case-specific facts. Third, the ALJ's explanation fails to show he considered the most important factors of consistency and supportability as required by 20 C.F.R. § 404.1520c. ALJ Hill never cites Dr. Sansbury's report (R. 17-25) and only cites two pages of Nurse Practitioner Campbell's report during the step two analysis (R. 18 (citing R. 1585, 1587)). For these reasons, the court is unable to say that ALJ Hill properly evaluated the medical opinions. Therefore, remand is recommended.
Implicit rejection of relevant medical opinions is suspect. See Ezzell v. Berryhill, 688 Fed.Appx. 199, 201 (4th Cir. 2017) (per curiam).
C ONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #19] be DENIED, and the Commissioner's decision be remanded for further consideration.
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 July 21, 2023, 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 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. (May 2023).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 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, a party's failure to file written objections by the foregoing deadline may 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).