Opinion
Case No. 8:17-cv-03418-MGL-JDA
11-12-2018
Charles L. McClure, Jr., Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In August 2014, Plaintiff filed an application for DIB, alleging a disability onset date of October 13, 2011. [R. 313-16; see R. 11 (providing application date).] The claims were denied initially [R. 159-70] and upon reconsideration [R. 171-84] by the Social Security Administration ("the Administration"). Thereafter, Plaintiff filed a written request for hearing [R. 219, 223-24] and, on March 3, 2017, appeared with an attorney and testified at a hearing before Administrative Law Judge ("ALJ") Colin Fritz [R. 38-71].
Plaintiff first appeared before the ALJ on November 2, 2016; however, the hearing was adjourned and rescheduled because the ALJ did not have all medical records before him at that time. [R. 72-78.]
The ALJ issued a decision on May 15, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 11-29.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2016, and had not engaged in substantial gainful activity since his alleged onset date of October 13, 2011. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of headaches, obesity, diabetes, a spine disorder, an affective disorder, an anxiety disorder, and a personality disorder. [R. 13, Finding 3.] The ALJ also noted that Plaintiff had non-severe impairments of knee pain, urethral stenosis and enlarged prostate, gastroesophageal reflux disease, and asthma. [R. 14.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15-16, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
After careful consideration of the entire record, the undersigned finds that, through the date of last insured, over the course of an 8-hour workday, in 2-hour increments with normal and acceptable work breaks, [Plaintiff] can perform work at the medium exertional level, as defined in 20 CFR 404.1567(c). He can never climb ladders[,] ropes and scaffolds. He can occasionally crawl. He can frequently climb ramps and stairs,
balance, stoop, kneel and crouch. He can occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights. He has sufficient concentration, persistence and pace to understand, remember and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional work place changes. He can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. He can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to reasonable and customary supervision.[R. 18, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a tractor trailer truck driver. [R. 27, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that, through the date of the ALJ's decision, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 28, Finding 10.] Accordingly, the ALJ concluded Plaintiff was not under a disability, as defined in the Act, at any time from October 13, 2011, the alleged onset date, through December 31, 2016, the date last insured. [R. 29, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined review. [R. 1-5.] Plaintiff filed the instant action for judicial review on December 19, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that errors by the ALJ require the decision to be reversed and the case remanded with instructions to award benefits. [Doc. 20.] Specifically, Plaintiff argues the ALJ erred by assigning only "some weight" to the medical source opinion of Plaintiff's treating psychiatrist, Dr. Michael Tran of the Anderson-Oconee-Pickens Mental Health Center [id. at 20-26]; by failing to build a "logical bridge" to explain how the limitations placed on Plaintiff's RFC account for his limitations due to his need to change his position from standing to sitting [id. at 26-30]; and by failing to comply with SSR 96-7p in assigning "some weight" to the witness statement in the record from Plaintiff's wife [R. 30-33].
The Commissioner contends the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 23.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Dr. Tran
Plaintiff first argues the ALJ erred by assigning only "some weight" to the medical source opinion of Plaintiff's treating psychiatrist, Dr. Tran. [Doc. 20 at 20-26]. Plaintiff maintains that the ALJ did not apply the § 404.1527(d) factors in determining the weight to give to Dr. Tran's opinion. The Court disagrees.
The ALJ discussed and analyzed the evidence relating to Plaintiff's mental impairments in significant detail. [R. 21-27.] He noted that "the record show[ed] a longitudinal history of treatment with [Dr. Tran] since October 2012, primarily for a major depressive disorder with psychotic features and PTSD." [R. 21.] Dr. Tran's notes indicated that Plaintiff improved with medications and reflected that he was controlling his anxiety and panic attacks. [R. 21.] The ALJ noted that at that time, Plaintiff's "mood was euthymic and his memory, attention and concentration remained intact." [R. 23.] Indeed, Plaintiff acknowledged that his depression improved and his irritability decreased after he started psychotropic medications, a proposition that was supported by the mental status findings of a consulting examiner in April 2013 that Plaintiff had normal mood and affect at that time. [R. 23.] Records during a period of incarceration showed that Plaintiff's problems were kept largely under control and specifically that medications were controlling his hallucinations, other delusional thoughts, and flashbacks, and Plaintiff was able to get along with his fellow inmates. [R. 23.]
After his release from prison, Plaintiff reported audio hallucinations in August 2014, at a time when he was not taking psychotropic medications. [R. 23.] Again, mental status findings did not show evidence of hallucinations or delusions at that time. [R. 23.] And treating source records from October and December 2014 reflected that Plaintiff had a euthymic mood and no more than a mild impairment in memory, attention, and concentration. [R. 23.] Mental status findings from a period of care from the Bon Secours Family Medical Center dated October 2015 also indicated a normal mood, affect, behavior, judgment and thought content. [R. 23.] And Plaintiff acknowledged that psychotropic medication was improving his mood and was affective overall, and his concentration and attention were only mildly impaired, while his memory remained intact. [R. 23.] Mental findings in January 2017 were similar, indicating only a mild impairment in concentration. [R. 23.]
The ALJ also reported that the Plaintiff's described daily activities were not limited to the extent one would expect if Plaintiff were actually limited in the way he alleges in this case or if he was unable to work. [R. 23.] Specifically, Plaintiff was "able to care for his personal needs without problem, prepare meals, clean, do laundry, take out trash, care for his dogs, and mow grass," "cook and shop with his wife, handle the finances, and take care of the yard." [R. 23.] He also was able to care for his wife, who struggled with her own health. [R. 23-24.] Although Plaintiff alleged that he suffers from social anxiety, the ALJ noted that he was "able to shop in stores for groceries and clothes, attend church services, attend physician appointments, and sit at the lake or beach, [and] fish[]." [R. 24.] And the ALJ noted that Plaintiff also could "interact with other inmates during his year's incarceration," "pay bills, count change and handle the household finances, despite his alleged focus and concentration problems." [R. 24.] He also "was articulate and engaging during his testimony, demonstrating good attention and concentration, as well as good memory when it served his purpose." [R. 24.] The ALJ concluded that, "[o]verall, the ability to perform this wide range of normal and ordinary activities of daily living is inconsistent with his alleged disabling conditions and inability to perform all work activity." [R. 24.]
The medical source statement at issue here, produced by Dr. Tran, and dated November 14, 2016, described Plaintiff as having a "history of stroke with cognitive impairment," being "emotional[ly] unstable," suffering from "chronic paranoia which makes it difficult for him to deal with the public," and "easily becom[ing] verbal[ly] aggressive" when provoked. [R. 911-12.] Dr. Tran opined that Plaintiff could occasionally follow work rules, use judgment, deal with work stresses, function independently, and maintain attention/concentration and that he could rarely relate to co-workers, deal with the public, and interact with supervisors. [R. 911.] He also opined that Plaintiff could occasionally understand, remember, and carry out detailed, but not complex, job instructions and simple job instructions, maintain personal appearance, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. [R. 911.] Dr. Tran stated that Plaintiff could rarely understand, remember, and carry out complex job instructions. [R. 911.] He checked "yes" in answer to questions on the medical source form concerning whether Plaintiff's mental impairments would cause him "to exceed the number of usual breaks during an eight-hour work day" and "would interfere with the completion of an eight-hour work day" [R. 912.] And in answer to the question of how often Dr. Tran would anticipate that Plaintiff's "impairments or treatment would cause [Plaintiff] to be absent from work," Dr. Tran selected the answer, "[m]ore than four days per month." [R. 912.]
The ALJ gave "substantial consideration to [Dr. Tran's] treating specialized source statement" and specifically noted Dr. Tran's history of "longitudinal treatment" of Plaintiff. [R. 25.] In the end, though, the ALJ gave Dr. Tran's opinion "only . . . some weight," rather than greater or controlling weight, because the ALJ found that the limitations Dr. Tran described were "excessive compared with the longitudinal medical evidence, including [Dr. Tran's] own treatment and examination reports. [R. 25 (citing R. 742-55, 767-83, 815-27, 976-83).] The ALJ added that "[a]lthough Dr. Tran has a longitudinal history with the claimant, he appears to take the claimant's subjective complaints at face value, wherein the longitudinal record notes many inconsistencies regarding his mental and physical complaints when compared with his observed and diagnostically supported condition." [R. 26.]
The Court concludes that the ALJ adequately explained why he did not give Dr. Tran's opinion more weight. Simply put, the description of Plaintiff's condition that even Dr. Tran's own records portrayed in the months leading up to the questionnaire were of a patient who had significantly benefitted from medications and who was left with only mild to moderate mental impairments. The form Dr. Tran filled out offered no significant explanation of why Plaintiff's impairments would cause the limitations the form identified. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence); Schaller v. Colvin, No. 5:13-cv-334-D, 2014 WL 4537184, at *16 (E.D.N.C. Sept. 11, 2014) ("[S]ince the opinion is in the form of a questionnaire, the ALJ was entitled to assign it less weight than a fully explanatory narrative opinion because such form opinions do not offer adequate explanation of their findings." (citations omitted)).
In the absence of any other explanation for the limitations Dr. Tran embraced, it was reasonable for the ALJ to observe that Dr. Tran's opinion appeared to be based on his acceptance of Plaintiff's subjective complaints. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (holding that an ALJ may give a treating physician's medical opinion little weight if the opinion is based on the patient's subjective complaints without sufficient evidence to substantiate the patient's claims), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2); Hall v. Berryhill, No. 5:16-cv-802-RJ, 2017 WL 4330356, at *6 n.3 (E.D.N.C. Sept. 29, 2017) ("[T]he finding that [the doctor's] opinion was based on Claimant's subjective complaints is bolstered by the lack of support for the opinion in the medical record evidence."). And Plaintiff does not offer any argument that this reading of Dr. Tran's opinion was unreasonable. Given Dr. Tran's apparent reliance on Plaintiff's subjective complaints, it was also reasonable for the ALJ to give Dr. Tran's opinion less weight in view of the many historical inconsistencies between Plaintiff's "mental and physical complaints" and "his observed and diagnostically supported condition." [R. 26.] See Aiken v. Berryhill, No. 4:17-cv-00014, 2018 WL 4839098, at *4 (W.D. Va. Oct. 4, 2018). The Court therefore concludes that the ALJ adequately explained the limited weight he gave to Dr. Tran's opinion.
In fact, Plaintiff, while citing some evidence that he maintains would support a more limited RFC, makes no attempt to explain why the ALJ's analysis of the evidence relating to Plaintiff's mental impairments was not reasonable and consistent with the substantial evidence in the record. And the only evidence in the year leading up to Dr. Tran's opinion that Plaintiff identifies as supporting Dr. Trans' limitations was Dr. Trans' October 2016 description of Plaintiff as "seem[ing] guarded and paranoid." [Doc. 20 at 22.] Dr. Tran noted that day that Plaintiff had not been taking his medication because he had run out. [R. 980.]
Plaintiff does not dispute that substantial evidence supported the ALJ's determination regarding the existence of these inconsistencies, and the ALJ identified several examples. For one, the ALJ noted that Plaintiff's prison records indicated that Plaintiff was exaggerating his symptoms, with his complaints at times being inconsistent with clinical observation. [R. 23.] During his imprisonment, Plaintiff reported hallucinations, but the ALJ observed that "his symptoms appear to disappear the closer he comes to his release date." [R. 24.] The ALJ also noted that Plaintiff "has a history of incarceration for 19 months for assault charges involving his stepdaughter and while he acknowledged he could not remember what happened, his memory has remained intact." [R. 24.] Also, Plaintiff "was voluntarily hospitalized for reported hallucinations; yet, the psychiatric staff refused to diagnose schizophrenia, diagnosing only an adjustment disorder and suggesting malingering." [R. 24.]
Plaintiff also appears to argue that the ALJ erred in failing to specifically discuss whether Dr. Tran was a specialist. [Doc. 20 at 21 (citing Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006)]. The question of whether a physician is indeed a specialist is a proper factor for an ALJ to consider in evaluating and weighing medical opinions. However, with regard to this opinion, where the issue was whether the physician simply uncritically accepted the limitations that Plaintiff claimed to have, the ALJ was not obligated to explicitly discuss whether Dr. Tran was a specialist. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) ("That the ALJ did not explicitly discuss all the § 404.1527([c]) factors for each of the medical opinions before him does not prevent this court from according his decision meaningful review. [The plaintiff] cites no law, and we have found none, requiring an ALJ's decision to apply expressly each of the six relevant factors in deciding what weight to give a medical opinion."); Adrian v. Berryhill, No. 4:17-cv-99-KS, 2018 WL 4293368, at *5 (E.D.N.C. Sept. 10, 2018) ("[T]he ALJ is not required to discuss each factor listed in 20 C.F.R. § 404.1527(c)(2).").
Plaintiff also argues that the ALJ erred in not specifically identifying which portions of Dr. Tran's opinion he declined to adopt. However, it is apparent that the critical parts were Dr. Tran's view that Plaintiff's mental impairments would cause him "to exceed the number of usual breaks during an eighthour work day" and "would interfere with the completion of an eighthour work day" and his opinion that Plaintiff's "impairments or treatment would cause [Plaintiff] to be absent from work . . . [m]ore than four days per month." [R. 912.] The ALJ's explanation is sufficient for the Court to understand his reasoning. See Faison v. Berryhill, No. 5:16cv00905D, 2018 WL 882073, at *7 (E.D.N.C. Jan. 10, 2018) (ruling that ALJ did not err in failing to explicitly identify the portions of an opinion he found consistent and the portions he found inconsistent with the medical record when the court could discern that information from the decision), Report and Recommendation adopted by 2018 WL 835 (Feb. 11, 2018).
Finally, Plaintiff argues in a single sentence that the ALJ erred in giving "'great weight' to the opinion of the onetime state agency chart reviewers, Dr. Kendall and Dr. Rowland, without evaluating the opinions of these physicians as required pursuant to 20 CFR § 404.1527(d)(1)(6)." It appears Plaintiff may have intended to refer to Dr. Robbins rather than Dr. Rowland. [R. 26, 17184.] In any event, the ALJ properly evaluated their opinions, weighing the factors that "they [we]re nontreating and nonexamining physicians" against the facts that "they are familiar with SSA policies, regulations and definitions regarding disability," "they have the advantage of reviewing a longitudinal record," and "the evidence received at the hearing level does not significantly contradict their opinions." [R. 26.]
Sitting and Standing Limitations
Plaintiff next maintains that the ALJ failed to adequately explain how the RFC he assigned Plaintiff accounts for Plaintiff's inability to stand for prolonged periods. [Doc. 20 at 26-30.] Plaintiff's argument references an April 2013 opinion from consulting examiner Dr. Stuart Barnes. [R. 645-48.] In the report, Dr. Barnes noted that Plaintiff reported pain in both knees that was much worse in the right knee. [R. 645.] The report noted that Plaintiff stated that "[h]e believes he can do weightbearing less than an hour" and that "when he goes to the grocery store with his wife sometimes, he has to find a place to sit down and rest while she finished shopping." [R. 645.]
The report also noted that Plaintiff reported posterior neck pain and that he sometimes feels tingling and numbness in his left hand. [R. 645.] The report stated that "[o]n visual inspection, [Plaintiff] has a slight exaggeration of the lumbar lordotic curve," and he has "limited range of motion of the cervical spine." [R. 647.] It also stated, "No pain pushing in his shoulders, but . . . neck pain pushing on top of his head." [R. 648.]
Dr. Barnes' impressions were that Plaintiff suffered from "[c]hronic neck pain with possible left upper extremity radiculopathy," "[c]hronic right knee pain," and "[p]osttraumatic stress disorder." [R. 648.] Dr. Barnes opined that Plaintiff "would not be able to stand for prolonged periods" and that "[s]itting in a driver's position for long periods of time would be [hard] for him." [R. 648.]
Instead of "would be hard for him," the exhibit in the record actually says "would be ___ for him." [R. 648.]
Evaluating Dr. Barnes' opinion, the ALJ gave it "some weight," given that there was record evidence to support it. [R. 25.] However, the ALJ declined to give greater weight to the suggested limitations because "the objective musculoskeletal findings are fairly benign, as established by both the radiographic findings of no more than mild spondylosis of the neck and the clinical findings showing no more than intermittent findings of cervical tenderness without spasm." [R. 25.] Additionally, Dr. Barnes had "no longitudinal history with the claimant and there [wa]s no evidence that Dr. Barnes reviewed contemporaneous knee and cervical x-rays that were unremarkable." [R. 25.] The ALJ also noted that Plaintiff "makes no physical impairment allegations in the current claim." [R. 25.]
In finding that any knee impairment was not severe, ALJ noted "there were no other abnormal findings, such as instability of the knee joint, effusion or swelling"; "range of motion of the left knee was normal and [Plaintiff] maintained full strength in both lower extremities" and "radiography of the right knee was negative," "[t]here is minimal evidence of knee complaints noted in the treating source records from Bon Secours Medical Center during the period of October 2015 to October 2016"; "there were not findings of knee laxity, swelling, or effusion and the meniscus was normal"; and "the claimant's knee condition had not caused more than minimal limitations in his ability to perform basic work-related activities." [R. 14 (citing R. 650-52, 907-10, 914-75).]
As for neck and back pain, the ALJ noted that there was significant evidence that Plaintiff's range of motion of the cervical spine was somewhat limited. [R. 1920.] Nonetheless, the ALJ noted that when "Plaintiff established care with the Bon Secours Family Medical Center in June 2013 primarily reporting neck and back pain," "[t]here was no evidence of spasms" and "no indication of lumbar spine abnormality." [R. 20.] Additionally, "clinical findings from October 2015 to October 2016 also fail to show any significant musculoskeletal abnormalities, except for weights ranging from 276 to 280 pounds." [R. 20.] Rather, "his gait remained steady and he did not require the use of an assistive device for ambulation." [R. 20.] "[I]n July 2016, the claimant maintained full motor strength without sensory deficits." [R. 20.] And "cervical MRI findings in August 2016 revealed only mild multilevel cervical spondylosis resulting in only mild neural foraminal narrowing on the right at C34 and on the left at C56." [R. 20 (citing 61475, 888906)]. He "was diagnosed with osteoarthritis of the cervical spine for which a trial of gabapentin was prescribed for neuropathic pain." [R. 20.]
Picking up on the ALJ's observation that there was record support for Dr. Barnes' limitations, Plaintiff contends that the ALJ actually credited Dr. Barnes' opinion that Plaintiff would likely not be able to stand for long periods. [Doc. 20 at 29 (asserting that the ALJ "recogniz[ed] that [Plaintiff] could not stand or sit for prolonged periods of time").] Building on that premise, Plaintiff argues that the ALJ erred by failing to include that limitation in his RFC. [Doc. 20 at 29-30.] The Court disagrees.
As the Commissioner notes [Doc. 23 at 21-22], the ALJ's RFC specifically provides for work "over the course of an 8-hour workday, in 2-hour increments with normal and acceptable work breaks" [R. 18, Finding 5]. Plaintiff argues that "the ALJ failed to offer any explanation . . . why he felt the RFC as articulated sufficiently covered any limitations as to sitting or standing." [Doc. 24 at 4.] The Court disagrees. The ALJ thoroughly analyzed the medical evidence relating to Plaintiff's knee, neck, and back issues, and concluded that the breaks the ALJ referenced would be sufficient to allow Plaintiff to work an 8-hour workday. Plaintiff offers no argument as to why the ALJ's evaluation of this medical evidence was inconsistent with substantial evidence in the record, and the Court knows of no reason why it would be.
Alternatively, even assuming that the ALJ erred by not making more specific findings about the length of periods that Plaintiff could sit or stand without changing positions, any such error would be harmless in the context of this case. See Mascio v. Colvin, 780 F.3d 632, 639 (4th Cir. 2015) (explaining that "remand may be appropriate where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review" (alterations and internal quotation marks omitted)). The ALJ explained why he decided not to give "[g]reater weight" to Dr. Barnes' opinion (and hence why the ALJ did not find that Dr. Barnes' opinion necessitated additional limitations in Plaintiff's RFC). See Smith v. Berryhill, No. 17-cv-00506-FDW, 2018 WL 3447187, at *8 (W.D.N.C. July 17, 2018) (holding under Mascio that "ALJ's error in addressing credibility prior to the discussion of the objective medical evidence was harmless because he ultimately did not leave the Court to guess his reasoning"). Remanding would simply produce the same explanation and the same RFC and thus would serve no purpose. Robinson v. Berryhill, No. 3:16-cv-866, 2018 WL 1718262, at *5 (W.D.N.C. Apr. 9, 2018) (holding that ALJ's error in failing to evaluate doctor's opinion evidence was harmless because even had the ALJ evaluated the opinion, it would not have affected the claimant's RFC).
Plaintiff's Wife's Statement
Plaintiff finally argues that the ALJ failed to comply with SSR 96-7p in assigning "some weight" to the witness statement in the record from Plaintiff's wife. [Doc. 20 at 30-33.] The Court concludes there was no error.
The Court notes that SSR 96-7p was superseded by SSR 16-3p prior to the ALJ's issuance of his decision. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). --------
The applicable regulations provide that evidence from nonmedical sources, including spouses, may be used to help evaluate a claimant's impairment. 20 C.F.R. § 404.1513(a)(4). "Opinions from non-medical sources are evaluated using the same factors as for an evaluating medical source, but 'not every factor for weighing opinion evidence will apply in every case.'" Robinson, 2018 WL 1718262, at *5 (quoting 20 C.F.R. § 1527(f)(1)). An ALJ may not discredit a family member's observations "solely because of inherent familial bias." Morgan v. Barnhart, 142 F. App'x 716, 724 (4th Cir. 2005) (emphasis added). Still, when considering opinions of "spouses, parents, friends, and neighbors," the ALJ should take into account "'the nature and extent of the relationship of the relationship' between a claimant and the third party, 'whether the evidence is consistent with other evidence,' and 'any other factors that tend to support or refute the evidence.'" Robinson, 2018 WL 1718262, at *6 (quoting SSR 06-03p, 2006 WL 2329939, at *6).
In this case, the ALJ summarized Plaintiff's wife's report and explained the weight he gave it:
She reported that he sleeps all day, is up to eat and dress, and tells him to brush his teeth and dress. She reported that he does not seem to care about personal hygiene; he could prepare small meals and could perform household chores, but takes all day having to stop and rest. He is scared to go out alone, but shops for food, manages finances, and watches television, but sometimes does not understand. He goes to church, does not han[g] out with friends or talk[] as he used to and his illness affects all abilities, except hearing and using his hands. She reported he could not lift over 25 pounds, squat, bend, stand, reach, walk, sit, or kneel for a long time. She reported he does not get along with people or authority figures, and he has gone downhill since she met him in 2009. The undersigned gives some consideration due to longitudinal history consistent with SSR 96-8, but only some weight, as it is . . . based on casual observation, rather than objective medical examination and testing. Further, it is potentially influenced by dynamics of family and self-interest in the outcome of his claim. It certainly does not outweigh the accumulated medical evidence, which is more persuasive regarding the extent to which the impairments limit the claimant's functional abilities.[R. 27 (emphasis added).]
Plaintiff contends that to the extent that the ALJ found any part of his wife's statement to be inconsistent with the record, the ALJ erred in not identifying with specificity the parts he found inconsistent and the reasons he found those parts not credible. [Doc. 20 at 32.] Plaintiff also maintains that the ALJ erred by rejecting the wife's opinion solely on the basis of her presumed bias because of her relationship with her husband. [Id. at 33.]
Addressing the last argument first, the Court notes that the ALJ did not reject Plaintiff's wife's opinion solely because of the ALJ's perception that she was potentially biased. Rather, he merely concluded that, considering her potential bias, he would reject her statement to the extent that it was inconsistent with the medical evidence that the ALJ thoroughly analyzed in his decision. Rejecting a spouse's opinion for that combination of reasons is entirely proper. Robinson, 2018 WL 1718262, at *6; see also McEachern v. Colvin, No. 0:15-1194-MGL-PJG, 2016WL3010494, at *3 (D.S.C. May 26, 2016) (ruling that spouse's close ties to the claimant was a proper factor for the ALJ to consider in determining the spouse's credibility).
Regarding the specificity of the ALJ's discussion, the ALJ's analysis was sufficiently detailed to allow the Court "to follow the adjudicator's reasoning." SSR 06-03p, 2006 WL 2329939, at *6. With the ALJ having concluded that Plaintiff's wife's statements could not outweigh the medical evidence that the ALJ thoroughly analyzed, no practical purpose would have been served by the ALJ's identifying exactly which parts of the statement were consistent with the medical evidence.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 12, 2018
Greenville, South Carolina