Opinion
Civil Case No. 2:16-cv-3675-TMC-MGB
01-17-2018
Connie A. Mitchell, Plaintiff, v. Commissioner of Social Security Admin., Defendant.
REPORT AND RECOMMENDATION
Plaintiff Connie A. Mitchell, through counsel, seeks judicial review of an unfavorable final administrative decision denying benefits on her applications for Title II disability benefits ("DIB") and Title XVI supplemental security income (SSI") under the Social Security Act ("SSA"). See Section 205(g) of the SSA, as amended, 42 U.S.C. Section 405(g). This matter was referred to the Magistrate Judge pursuant to Local Rule 73.02(B)(2)(a) (D.S.C.) and 28 U.S.C. § 636(b)(1)(B). Having carefully considered the record, including the parties' briefs (DE# 15, 17), the administrative record (DE# 9), and applicable authority, the Magistrate Judge recommends that the Commissioner's final decision be remanded pursuant to sentence four of 42 U.S.C. § 405(g), for the following reasons:
I. Standard of Review
Section 405(g) of Title 42 of the United States Code provides judicial review of Commissioner's final decision. Review is limited to: (1) whether substantial evidence supports such decision; and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lewis v. Comm'r, 858 F.3d 858 (4th Cir. 2017); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Substantial evidence is defined as "more than a mere scintilla but less than a preponderance." Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996).
The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Hays, 907 F.2d at 1456. It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Id. If the decision is supported by substantial evidence, the reviewing court must affirm, even if it would have decided the case differently. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) ("Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].").
II. Relevant Statutory Law
The SSA provides that disability benefits are available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are disabled within the meaning of the statute. 42 U.S.C. § 423(a). The claimant "bears the burden of proving a disability." Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). Under the SSA, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The regulations set forth a five-step sequential process that considers a claimant's age, education, work experience, and medical condition. 20 C.F.R. §§ 404.1520(a). To be entitled to benefits, the claimant "(1) must not be engaged in 'substantial gainful activity,' i.e., currently working; and (2) must have a 'severe' impairment that (3) meets or exceeds the 'listings' of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity ["RFC"] to (4) perform [the claimant's] past work or (5) any other work." Albright v. Comm'r, 174 F.3d 473, 475 n.2 (4th Cir. 1999); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of production and persuasion through the fourth step. If the claimant reaches step five, the burden shifts to the government to provide evidence that other work exists in significant numbers in the national economy that the claimant can do. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam).
III. Background
The relevant facts have been extensively set forth in the ALJ's decision (AR 14-26) and in the parties' briefs (DE# 15, 17), and are summarized as follows: Plaintiff was born January 7, 1964 (a "younger" person) and was age 48 on her alleged disability onset date of July 8, 2012. (AR 24, 203). She has a driver's license, communicates in English, has a limited education, can read and write, and can do simple math. (AR 24, 48). Plaintiff indicates she was an average student in high school. (AR 314, 315 indicating she "reads well"). She left high school in tenth grade and subsequently completed vocational training to obtain certification as a nursing assistant. (AR 49). She is married and has two adult children, but is separated from her husband and currently lives with a friend. (AR 203, 209, 314).
Plaintiff has past relevant work experience as a certified nursing assistant at several nursing facilities (1997-2006, medium, semi-skilled) and as a cashier/customer service associate at a paper goods store (2006-2010, light, unskilled). (AR 75, 231, 242-44, 274-76, 315). Plaintiff used a computer, cash register, and calculator in the store job. (AR 243). She testified that she lost her cashier/customer service job because the store "closed down" (AR 52, 230). The ALJ noted that Plaintiff left her jobs for reasons other than disability. (AR 22, 274, letter from Plaintiff's former store manager indicating their jobs were eliminated in December 2010). Plaintiff also indicated she was terminated from her prior nursing job due to "bad feelings about her filing a Workmen's Comp case" regarding her shoulder (AR 322). Plaintiff received unemployment benefits until July 8, 2012 (AR 44, 225).
See, e.g., Guthrie v. Colvin, 2014 WL 2575318, *7 (E.D.N.C. 2014) (an ALJ may properly note that a claimant left her job for reasons other than alleged disability).
Plaintiff filed DIB and SSI applications on November 26, 2012, alleging disability as of January 1, 2011, due to chronic obstructive pulmonary disease (COPD), diabetes, manic depression, and panic attacks (AR 83, 98, 203-10, 230). Plaintiff indicated to the disability examiner that COPD is her main physical issue. (AR 317). Plaintiff complains of shortness of breath, but indicates she is a "long time heavy smoker, smoking two packs a day for many years." (AR 93, 145, 315, 323). Plaintiff indicates that doctors have repeatedly told her to quit smoking, but she continues to smoke. (AR 282, 323, 621). Plaintiff was also formerly a heavy drinker and used methamphetamines, but indicated she has not done this for over a decade. (AR 64, 124, 317). The Commissioner ordered consulting mental and physical examinations.
The Contract with America Advancement Act of 1996, Pub. L. No. 104-121, § 105(a)(1)(C), 110 Stat. 852, amended the definition of "disability" under Title II to bar benefits for any individual whose disability is based on alcoholism or drug addiction. 42 U.S.C. 423(d)(2)(C). Title II now states: "An individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." Id.; and see Delk v. Colvin, 675 F.App'x 281 (4th Cir. Jan. 18, 2017) (holding that 42 U.S.C. §§ 423(d)(2)(C) and 1382c(a)(3)(J) preclude a finding of disability if substance abuse "is a material contributing factor to the disability finding"). Medical records, including the ENT specialist's report, note Plaintiff's long history of "tobacco abuse." (AR 397, 405, 441). Failure to quit smoking has been held to be a justifiable grounds for refusing benefits. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984) (benefits may be denied where physician has ordered smoking cessation and claimant can stop smoking).
On March 18, 2013, Plaintiff underwent a consultative examination with psychologist Bruce Kofoed, Ph.D. He noted that although Plaintiff denied using "crystal meth" or other illegal drugs in the last fifteen years or abusing alcohol in the last ten years, "the validity of those dates is somewhat in question." (AR 314). He indicated that Plaintiff reported depressed mood and anxiety around crowds and public places, but that her sleep was fairly good with Ambien and that she slept 6-7 hours per night. (Id.). He noted that Plaintiff lives with a female friend, drives a vehicle, shops, cares for herself, manages her own finances, and does household chores "when she feels like it." (AR 315-16). He observed that Plaintiff seemed nervous during the interview but was capable of answering his questions. (Id.). He found "no indications of psychotic processes." (AR 316). He noted that Plaintiff was able to copy geometric shapes and angles with fair attention to detail, that her recall was fair for nonverbal information, but poor for a recently learned verbal list. (Id.). He therefore suggested that Plaintiff would likely be "overwhelmed rather quickly in a hectic, customer service type environment." (Id.).
On April 1, 2013, Plaintiff underwent a comprehensive physical examination with consulting physician Dr. Marcia Oliver, M.D. (AR 322-25). Plaintiff acknowledged smoking 1-2 packs daily for decades. (AR 323). Plaintiff complained that she is "sometimes short of breath with some activities and frequently has a cough." (Id.). Plaintiff alleged she has "some right shoulder discomfort" and "aches in both her knees" for which she sometimes takes over-the-counter analgesics. (Id.). Plaintiff reported some low back discomfort, but acknowledged that it does not generally affect her activities. She indicated that she has taken psychiatric medication (Cymbalta) since 2006 and that it helps. She indicated she was happy with her psychiatric care. (AR 322). Plaintiff indicated she has not been psychiatrically hospitalized or had emergency treatment except for a single incident in 2006. (Id.). Based on examination, as well as statements by Plaintiff and her daughter, Dr. Oliver observed that Plaintiff's COPD was not interfering "with the usual activities," that Plaintiff's diabetes that was not functionally limiting, and that Plaintiff had mild to moderate degenerative knee arthropathy and a moderate mood disorder with components of anxiety and depression. (AR 324-35). Dr. Oliver indicated the mental issues were being "appropriately treated." (Id.).
For activities of daily living, Plaintiff reports that she watches about 3-4 hours of television, drives her car, shops for groceries and cigarettes, bathes and takes care of her own hygiene, feeds and dresses herself, cares for her dog, prepares simple meals, washes dishes, reads, talks on the phone, exercises daily, and socializes with friends and family. (AR 22, 49, 59-61, 69, 141-42, 248-53, 315, 438). She testified that she does not like crowds and gets anxious around new people. She manages her own funds. (AR 287). She does laundry and other household chores, such as mopping, sweeping, and cleaning the kitchen, bedroom, and bathroom. (AR 22, 59-61, 249). She indicates she walks outside several times daily and sits on the porch. (AR 250). Plaintiff acknowledges that she walks without assistance, which the records consistently reflect. (AR 128, 145).
Plaintiff's applications were denied initially and on reconsideration (AR 154-62). On November 18, 2013, she requested a hearing (AR 167-68). At the hearing on April 30, 2015, Plaintiff (represented by counsel) and Mr. Carroll Crawford (impartial vocational expert, "VE") both testified (AR 38-82, 200). Plaintiff moved to amend her onset date to July 8, 2012, the date that she stopped receiving unemployment benefits (AR 44-46, 225). Her request was granted. (AR 47). At the hearing, Plaintiff alleged some additional problems such as anxiety around people, periodic headaches, some numbness in her neck, diabetes, and a "soft" voice. (AR 54).
After leaving the record open for Plaintiff to submit additional records, Administrative Law Judge ("ALJ") Jerry W. Peace issued a decision on July 16, 2015, finding that Plaintiff was not entitled to disability benefits. (AR 14-26). Specifically, the ALJ found at the fifth sequential step that Plaintiff was able to perform unskilled light work within her restrictions, including the representative jobs of garment sorter, garment folder, and stock checker, and thus, was not disabled within the meaning of the SSA (AR 25, 77). Post-decision, Plaintiff submitted additional medical records (AR 4, citing Exs. 29F-32F). The Appeals Council determined that the additional evidence did not provide a basis for changing the ALJ's decision (AR 2). Thus, the ALJ's decision is the Commissioner's final decision (AR 1-5). See 20 C.F.R. § 404.984(a).
Many of these newly-submitted post-decision records reflect doctor visits for transient issues such as a twisted ankle, heel pain, sore throat, cough, and medication refills. See Exs. 29F-32F.
IV. Summary of the ALJ's Decision
The ALJ considered Plaintiff's applications, in which Plaintiff alleged disability due to COPD, diabetes, and manic depression/panic attacks (AR 83, 98, 203-10). He considered the hearing testimony, where Plaintiff also complained about headaches, her knee and right shoulder, and a soft voice. The ALJ considered the medical evidence, including records indicating that Plaintiff can walk without assistance, has 5/5 muscle strength of all major muscle groups, no joint abnormalities, no muscular atrophy, no neurological deficits, and normal reflexes. (AR 20-21). Treatment notes consistently reflect normal range of motion ("ROM") of Plaintiff's back, hip, knees, and all other joints of the extremities (Id.; AR 145, 319, 322-25). Treating physicians indicated Plaintiff's knee joints are normal (AR 319, knee x-rays 04/22/2013 show no fracture, no dislocation, no appreciable arthropathy, small joint effusion without other findings; AR 282, x-rays 07/24/2014 show "no acute abnormality about the right knee") and that she has normal lumbar spine and disc spaces, with both hips symmetrically maintained; AR 365-366). The ALJ noted that Plaintiff has mild scoliosis to the left (AR 21), but Plaintiff indicated this did not cause any functional limitations. (AR 323). Plaintiff had a shoulder sprain in 2013 and indicated in her application that she can "only lift 30 pounds." (AR 252, 364). Plaintiff complains of some shortness of breath and coughing, but persists in smoking against doctors' advice. Medical records indicate Plaintiff's COPD is controlled with medication and was not interfering with her daily activities. (AR 19-20, citing Ex. 5F, 12F). Doctors have prescribed Metformin for Plaintiff's diabetes and indicated that it is well-controlled. Plaintiff acknowledged this at the hearing. (AR 63 "It's controlled.").
The ALJ limited Plaintiff to "light work" which is defined as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. (AR 22); see 20 C.F.R. § 404.1567(b).
The ALJ also considered medical records from Greenville Memorial Hospital showing that Plaintiff was admitted on March 13, 2014 for a cerebral vascular accident ("CVA"), which doctors characterized as a minor stroke. (AR 20, citing Ex. 12F). Plaintiff underwent a successful left carotid endarterectomy and was released on March 20, 2014. Progress notes indicate she did well in physical therapy. She initially had "some moderate complaints of blurred vision" (AR 252, 397), but the ALJ noted that hospital records showed that this was merely a transitory issue "secondary to medication effects." (AR 20, citing Ex. 12F/1; AR 397). Examination reflected 20/20 visual acuity with glasses, and her own doctor indicates Plaintiff has "no visual limitations." (AR 92, 324). Plaintiff's physician, Dr. Brian Marshall Thompson, M.D., fully evaluated Plaintiff and upon discharge, indicated that Plaintiff was improving, her neck was supple, the incision was well-healing, "she moves her head and neck in the normal fashion," and her "speech is good." (AR 397-98, discharge summary dated 3/20/2014).
Plaintiff complained of onset of right arm/leg weakness over several days, but denied any falls, seizures, vision changes, or speech problems. (AR 406, Ex.12F). Medical records indicate "no facial involvement," normal ROM of neck, and normal speech, memory, and concentration. (Id.). An MRI found some "scattered small acute infarctions" (i.e. stroke) which could explain the reported weakness (AR 401, 409).
With respect to Plaintiff's alleged mental issues during the relevant time period (July 8, 2012 to July 16, 2015), the ALJ observed that when Plaintiff was admitted to the hospital on March 13, 2014 for the CVA, she exhibited "depression and suicidal ideation." (AR 21). Plaintiff's medication was changed, and "within a day or so ... she was sleeping better and her mood was improving." (AR 21, citing Ex. 25F). Plaintiff continued to show improvement, and when discharged on March 20, 2014, was in "stable, improved condition." (Id.). She participated in an outpatient treatment program, and thereafter received conservative treatment consisting of checkups and medication refills. (Id.). Plaintiff's psychiatrist Dr. Dana Wiley, M.D., prescribed Ambien, which helps Plaintiff sleep adequately, and Cymbalta, which admittedly helps Plaintiff with anxiety and depression. (AR 322). Subsequent progress notes indicated Plaintiff was alert, her memory and orientation to time and place were intact, speech was normal, no psychosis present, mood and affect were appropriate, her insight and concentration were good (AR 21, citing Ex. 26F, notes of , 7/3/13, 7/7/2014, 10/7/2014, 5/20/2015; AR 631, 635, 677).
The ALJ determined that Plaintiff's COPD, affective disorders (i.e. anxiety), vocal cord paralysis, HTN (hypertension), headaches, and dysfunction of major joint (shoulder) were "severe" impairments within the meaning of the SSA. (AR 16, Finding 3). The ALJ found Plaintiff's diabetes and past CVA did not result in more than minimal limitation in her ability to perform basic work activities, and thus were non-severe. (AR 16, Finding 4). The ALJ noted that after Plaintiff was admitted for the CVA in 2014, she underwent a left carotid endarterectomy without complication and was discharged. (AR 17). The ALJ observed that Plaintiff's diabetes was admittedly well-controlled with medication, and that Plaintiff had not complained of any resulting limitations. (Id.).
The ALJ determined that Plaintiff did not have an impairment of combination of impairments that met or medically equaled any listed impairments, including Listing 1.02 (major dysfunction of joints), Listing 3.02 (chronic pulmonary insufficiency), and the mental disorder Listings at 12.00, including 12.06. (AR 17-18, Finding 5). See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. §§ 404.1520(d), 1525, 1526. The ALJ applied the special technique for mental disorders. See Patterson v. Comm'r, 846 F.3d 656 (4th Cir. January 19, 2017) (discussing special technique required by 20 C.F.R. § 404.1520a). The ALJ considered the "B" criteria and all four functional areas specified in the regulations. (AR 18). The ALJ found mild restriction of activities of daily living, moderate restriction of social functioning, moderate restriction of concentration/persistence/pace, and 1-2 episodes of decompensation of extended duration. (AR 18). The ALJ found that the evidence failed to establish the "C" criteria because there were no repeated episodes of decompensation that establish a propensity toward decompensation or the need for a supportive living arrangement. (Id.).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that her subjective complaints about the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (AR 21). The ALJ observed that Plaintiff "has only received conservative treatment for her allegedly incapacitating pain...has not required surgical intervention on her neck, back, shoulder or knees....has required minimal emergent care, she has not consistently reported pain and she has not consistently taken pain medications." (AR 22). The ALJ reasoned that "[s]uch moderate treatment for a condition alleged to be incapacitating serves to undermine the credibility of the claimant as to the severity of her impairments." (Id.). The ALJ pointed out that the "medical evidence consists of routine findings which do not support the claimant's overall contention of disability." (AR 19).
SSR 16-3p superseded SSR 96-7p on March 16, 2016. See 2016 WL 1119029 (2016). SSR 16-3p eliminates use of the term "credibility" and clarifies that subjective symptom evaluation is not an examination of a claimant's character. The ALJ decided the present case prior to the effective date of SSR 16-3p. Thus, SSR 96-7p still applies here. In any event, courts have noted that SSR 16-3p requires assessment of the same factors as SSR 96-7p. See e.g., Keefer v. Colvin, Case No. 1:15-4738-SVH, 2016 WL 5539516, *11 (D.S.C. Sept. 30, 2016); Savage v. Berryhill, Case No. 5:16-1138-KDW, 2017 WL 3124177, *10 n.2 (D.S.C. July 24, 2017).
The ALJ considered Plaintiff's functional abilities and determined that she retained the RFC to perform unskilled light work with certain restrictions. (AR 19, Finding 6). See Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. June 16, 2016) (discussing function-by-function analysis). The ALJ found that Plaintiff should only occasionally climb ladders, ropes, or scaffolds; could frequently perform right overhead reaching; should have only occasional exposure to environmental irritants such as fumes, odors, dusts, and gasses; was limited to occupations that do not require complex written or verbal instructions or frequent verbal communication; was limited to performing simple, routine, and repetitive tasks, in a work environment free of fast-paced production requirements, involving only simple, work-related decisions, and with few, if any, workplace changes; and should have only occasional interaction with the general public (AR 19).
Based on the evidence of record, including the Plaintiff's age, education, work history, RFC, and the hearing testimony, the ALJ determined that the Plaintiff could not do her past relevant work, but could still perform various representative jobs identified by the VE that existed in significant numbers in the national economy, such as garment sorter (SVP2, with 98,000 jobs nationally), garment folder (SVP2, with 112,000 jobs nationally), and stock checker (SVP2, with 142,000 jobs nationally) (AR 24-25). The ALJ concluded that the Plaintiff was not disabled from July 8, 2012 (the amended alleged onset date) through July 16, 2015 (the date of the ALJ's decision). (Id.).
V. Issues Presented
Plaintiff challenges every step of the Commissioner's decision (albeit out of sequence). Specifically, Plaintiff alleges that:
1) the ALJ erred by making no mention or evaluation of the medical source opinion of Claimant's treating otolaryngologist, Dr. Arthur Wood;(DE# 15 at 1-2). Some of these issues are based on inaccurate premises refuted by the record. For example, although Plaintiff contends that the ALJ "failed to consider [Plaintiff's vocal paralysis] as a severe impairment" (DE# 15 at 26), the ALJ did find that Plaintiff's vocal cord paralysis was a "severe" impairment (AR 16, Finding 3). Additionally, the record reflects that the ALJ did expressly evaluate whether Plaintiff's mental impairments met the B and C criteria for any mental disorder Listings (AR 17-18), the hearing transcript reflects that the ALJ did consider the written statement of the lay witness (i.e. there was no "testimony"), and the Appeals Council did indicate it had considered Plaintiff's evidence submitted post-decision (AR 2). (See Issues 2, 6, 9).
2) the Appeals Council failed to properly evaluate the new evidence before it;
3) the ALJ erred by assigning only "little evidentiary weight" to the medical source opinion of Claimant's treating psychiatrist, Dr. Dana Wiley;
4) the ALJ erred by assigning "substantial weight" to the opinions of consultative examiner, Dr. Marcia Oliver, and "some weight" to the opinions of consultative examining psychologist, Dr. Bruce Kofoed;
5) the ALJ erred by failing to follow the "slight abnormality" standard at Step 2 of his analysis when he failed to find or evaluate Claimant's impairments of status post cerebral vascular accident ("CVA"), bilateral knee osteoarthritis, and anxiety as severe impairments;
6) the ALJ's Step 3 analysis was insufficient as the ALJ did not evaluate whether Claimant's vocal impairment met Listing 2.09 (Loss of speech) nor whether Claimant's impairment of "Affective Disorders," which he found to be severe at Step 2, met Listing 12.04 (Affective Disorders);
7) the ALJ erred at Step 4 by finding Claimant has "moderate difficulties" with regard to "concentration, persistence or pace" at Step 3 of the Decision but failed to provide any limitations for such impairment in concentration, persistence or pace in the residual functional capacity finding;
8) the ALJ erred at Step 4 by failing to comply with SSR 96-7p to reject Claimant's testimony regarding the severity of her symptoms and limitations;
9) the ALJ erred at Step 4 by failing to comply with 20 C.F.R. § 404.154(a)(3), 416.945(a)(3) and SSR 96-7p when he failed to mention or weigh the lay witness testimony from Claimant's former employer; and
10) the ALJ erred at Step 5 of his analysis by ignoring the vocational expert's testimony at the hearing that there was no work that Claimant could perform upon a proper consideration of all her limitations.
The ALJ evaluated the mental disorder Listings 12.00, including 12.06, and considered the B and C criteria.
In response, the Commissioner addresses each issue, concluding that the ALJ's decision is supported by substantial evidence and should be affirmed.
VI. Discussion
Turning to the first issue, Plaintiff contends that the ALJ failed to consider the opinion of ENT specialist Dr. Arthur Wood regarding Plaintiff's voice and related functional abilities. The regulations provide that the ALJ "will evaluate every medical opinion we receive." 20 C.F.R. §§ 404.1527(c). Generally, an ALJ assigns more weight to the opinion of an examining medical source than to the opinion of a non-examining source. 20 C.F.R. § 404.1527(c)(1). More weight is usually assigned to opinions of treating physicians because they are most able to provide "a detailed, longitudinal picture" of a claimant's condition. 20 C.F.R. § 404.1527(c)(2). Although a treating physician's opinion is generally entitled to "great weight," the ALJ is not required to give it "controlling weight" if is not supported by clinical evidence or is inconsistent with other substantial evidence. Id.; Hunter, 993 F.2d at 35 ("The ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence."). The ALJ must articulate "good reasons" for the weight assigned to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2); Johnson, 434 F.3d at 654.
The ALJ considers the following non-exclusive factors: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. 20 C.F.R. §§ 404.1527, 416.927; Johnson, 434 F.3d at 654; Dunn v. Colvin, 607 F.App'x 264, 2015 WL 3451568 (4th Cir. June 1, 2015). While not every factor for weighing opinion evidence will apply in every case, Plaintiff points out that the ALJ's decision does not indicate consideration of any of the above factors or the weight assigned to Dr. Wood's opinion. Generally, the more the physician presents relevant evidence to support the opinion, and the better the physician explains it, the more weight such opinion is given. 20 C.F.R. § 404.1527(d)(3). The nature and extent of a treatment relationship affects the weight given by an ALJ. Id. §§ 404.1527(d)(2)(ii), 416.927(d)(2)(ii). While an ALJ is under no obligation to accept a medical opinion, the ALJ must explain the weight accorded a medical opinion. SSR 96-2p, 1996 WL 374188, *5; SSR 96-6p, 1996 WL 374180, *1.
Plaintiff contends that the ALJ erred "by making no mention or evaluation of the medical source opinion of [her] treating otolaryngologist, Dr. Arthur Wood." (DE# 15 at 20, citing Ex. 28F). An otolaryngologist is commonly known as an "ear, nose, throat" (ENT) physician. In her brief, Plaintiff argues that:
[Dr. Wood] rendered an opinion that, due to [Plaintiff's] status post-CVA and the resulting impact on her vocal chords, [she] would never be able to utilize her voice to effectively communicate with co-workers and supervisors in a work-place setting.... Dr. Wood noted that [Plaintiff] suffers from left vocal chord paralysis which has improved but which left [her] with a "muscle tension dysphonia with a posterior glottic chink with phonation" ...[and] that Mitchell "is unable to speak above a barely audible whisper". Id. Dr. Wood reached this conclusion based on his yearlong treatment of Mitchell, including frequent office evaluations and "flexible laryngoscopy videostraboscopy done on 1/28/15 at Greenville ENT." Id. Mitchell's inability to speak above a whisper was even noted by the ALJ at the hearing, wherein he took it upon himself to repeat each of Mitchell's inaudible responses to his questions so that her answers could be recorded for the transcript.... the ALJ failed to even mention Dr. Arthur Wood's medical opinion in his decision.(DE# 15 at 20). Plaintiff contends that this omission requires reversal and remand. Plaintiff does not discuss how Dr. Wood's opinion might have affected the RFC assessment.
The Commissioner responds that:
After a review of the ALJ's decision, it is clear that the ALJ reviewed the record as a whole. In any event, "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." Reid v. Comm'r of Soc. Sec, 769 F.3d 861, 865 (4th Cir. 2014). See Smith v. Colvin, No. 12-1247, 2015 WL 3505201, at *7 (M.D.N.C. June 3, 2015) ("[T]he ALJ is not required to comment in the decision on every piece of evidence in the record, and the ALJ's failure to discuss a specific piece of evidence is not an indication that the evidence was not considered."). Here, Dr. Wood was not a treating physician but a physician who Plaintiff consulted twice during the relevant period about surgery and speech therapy. At both of these visits in February and April 2015, Dr. Wood noted that, although Plaintiff would benefit from speech therapy, she communicated appropriately for her age (Tr. 661, 663-64), which is inconsistent with his opinion. To the extent that the ALJ did not expressly discuss Dr. Wood's opinion, it makes no difference to the ultimate conclusion. NLRB v. Wyman-Gordon Co, 394 U.S. 759, 766 n.6 (1969) (No principle of administrative law "require[s] that [courts] convert judicial review of agency action into a ping-pong game" in search of the perfect decision.). Accordingly, the ALJ considered the medical opinion evidence and substantial evidence supports the ALJ weight that the ALJ gave to the opinions.(DE# 17 at 19-20).
Although Plaintiff characterizes Dr. Wood as a treating physician who "examined and treated Mitchell for approximately one year," the Commissioner contends that Plaintiff merely consulted Dr. Wood on two occasions in 2015 about a surgical procedure and referral to speech therapy. Neither assertion is fully accurate. The medical record before the ALJ indicated that Dr. Wood saw Plaintiff on three occasions: on 1/30/2015 (AR 442) for a videostroboscopy, and in February and April 2015 for follow-up visits. Dr. Wood diagnosed left vocal cord paralysis and indicated that Plaintiff would benefit from speech therapy (AR 661, 663-64). Regardless, the ALJ did not address the medical records and opinion of Dr. Wood regarding Plaintiff's vocal problems, including her "dysphonia." (AR 659-665, Exs. 14F, 28F).
Videostroboscopy is an endoscopic procedure which "provides a magnified, slow-motion view of the vocal cords during phonation which allows doctors and speech language pathologists to assess numerous parameters (e.g., abnormal motion of the vocal cords)..." See https://medical-dictionary.thefreedictionary.com/videostroboscopy.
Dr. Wood's report noted Plaintiff's smoking. Various doctors have advised Plaintiff to cease smoking. See Sizemore v. Berryhill 878 F.3d 72 (4th Cir. Dec. 1, 2017) (affirming denial of benefits, observing that "the record indicates, with strong evidence, that [Plaintiff] would have much increased functioning were he to stop [substance abuse] and follow the treatment prescribed").
Dysphonia is defined as "a hoarse voice ... when the voice involuntarily sounds breathy, raspy, or strained, or is softer in volume or lower in pitch." See https://en.wikipedia.org.
The parties selectively rely on excerpts from Dr. Wood's notes, where he indicated Plaintiff spoke in a "barely audible whisper" but also (inconsistently) that she could "communicate appropriately." (AR 661). Plaintiff ignores Dr. Wood's notation that she could "communicate appropriately" and emphasizes his reference to a "barely audible whisper," whereas the Commissioner ignores the "audible whisper" reference and emphasizes the notation that Plaintiff could "communicate appropriately."
At the April 14, 2015 appointment, Dr. Wood noted that he "had an extended conversation with the patient." (AR 663). On that date, Dr. Wood prepared a one-page opinion indicating that "as it currently stands," Plaintiff could "never" communicate effectively with co-workers, supervisors, or the general public for an eight-hour workday (AR 624). Dr. Wood did not indicate how long Plaintiff's voice condition was expected to last or how much it could improve (through therapy, healing, or cessation of the "excessive coughing" and habitual smoking that he noted on his charts). Dr. Woods did indicate that "her voice may be able to improve with extensive speech therapy." (Id.). The Commissioner contends that Dr. Wood's notes are inconsistent with his opinion that Plaintiff could "never" communicate effectively. (AR 624). In her brief, Plaintiff emphasizes the word "never" and ignores Dr. Wood's significant qualifying language "as it currently stands." (DE# 15 at 20). Such qualifying language indicates that Dr. Wood's opinion was leaving open the possibility of improvement in Plaintiff's condition.
A claimant must demonstrate that her impairments "lasted or must be expected to last for a continuous period of at least 12 months." 20 C.F.R. § 404.1509 (the "duration" requirement); and see § 404.1522(b) (discussing improvement within 12 months).
In fact, on October 7, 2015, approximately three months after the ALJ's decision, Dr. Wood referred Plaintiff to speech therapy. Plaintiff then completed eight speech therapy sessions from 10-26-2015 through 11-13-2017, with notes indicating that Plaintiff was "demonstrating progress." She was then discharged from speech therapy. (AR 755). The discharge summary (dated 11/13/2015) from Greenville Health System indicates that Plaintiff's "lingual and labial structures appeared within functional limits for speech and swallowing purposes," although she has "vocal cord paralysis which affects her intelligibility." (AR 756). Plaintiff's "Oral Motor Voice Exam" was deemed "normal in all respects" but also indicated that Plaintiff has an "abnormally soft" and "strain-strangled" voice with continuous breathiness. (AR 755-59). It is for the ALJ, not the Court, to weigh the conflicting evidence. See, e.g., Riley v. Berryhill, No. 8:16-cv-352-JDA, 2017 WL 3381293 (D.S.C. August 7, 2017). Here, the Court does not have the benefit of any analysis by the ALJ regarding such evidence, any discussion of the medical opinion of the ENT specialist, or any discussion of its possible relevance to the RFC assessment.
This evidence was submitted to the Appeals Council after the ALJ's decision. --------
While the Commissioner correctly asserts that "there is no rigid requirement that the ALJ specifically refer to every piece of evidence" in the record, the regulations do provide that the ALJ "will evaluate every medical opinion we receive." 20 C.F.R. §§ 404.1527(c). Plaintiff correctly points out that the ALJ did not mention or discuss Dr. Wood's medical opinion regarding Plaintiff's vocal cord paralysis or indicate what weight he was assigning it.
In fairness to the ALJ, whose decision otherwise appears to be thorough and well supported, Plaintiff did not mention Dr. Wood at the hearing or ever refer to Dr. Wood's one-page opinion, which pre-dated the hearing (Ex. 28F). Plaintiff apparently did not submit it in time for the hearing. The record reflects that Exs. 1A through 27F were admitted at the hearing. (AR 41). (Id. Q: "Do I have all known evidence relating to disability?" A: You do, your honor."). The Order of the Appeals Council indicates that Exhibits 29F through 32F were submitted after the ALJ's decision. (AR 4). Presumably then, Plaintiff submitted Ex. 28F after the hearing, but before the ALJ issued his decision. Given that the record before the ALJ consisted over 650 pages of exhibits, and given that Plaintiff never mentioned Dr. Wood or his report (and apparently submitted it post-hearing), it is easy to understand how this single page might have been overlooked. At the hearing Plaintiff emphasized her other impairments (see AR 54-59, 64-66), although she did once mention having a "soft" voice. (AR 54). Plaintiff urges that her soft voice was obvious at the hearing. Plaintiff contends that her speech was limited after her minor stroke in 2014, but her discharge summary indicates "speech good." (AR 397-98, discharge summary dated 3/20/2014).
An ALJ must explain the weight afforded to medical opinions. See SSR 96-2p, 1996 WL 374188, *5 (July 2, 1996); SSR 96-6p, 1996 WL 374180, *1 (July 2, 1996); Ashmore v. Colvin, No. 0:11-2865-TMC-PJG, 2013 WL 837643, *2 (D.S.C. Mar. 6, 2013) ("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"). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, 2013 WL 5350870, *2 (E.D.N.C. Sept. 24, 2013), aff'd, 584 F.App'x 155 (4th Cir. Oct. 10, 2014). Remand may be appropriate where an ALJ has not provided good reasons for discounting the opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2); see, e.g., Stroup v. Apfel, 205 F.3d 1334, 2000 WL 216620, *6 (4th Cir. 2000); Ladson v. Astrue, No. 4:11-2565-TER, 2013 WL 655971, *9 (D.S.C. Feb. 22, 2013) (remanding case for ALJ to address opinion of treating physician); Tomlin v. Colvin, 2014 WL 4162402, *6-7 (E.D.N.C. July 17, 2014) (same), adopted by, 2014 WL 4162783 (E.D.N.C. Aug. 20, 2014).
In some circumstances, "the failure of an ALJ to explicitly state the weight given to a medical opinion constitute harmless error, so long as the weight given to the opinion is discernible from the decision and any grounds for discounting it are reasonably articulated." Bryant v. Colvin, 2013 WL 3455736, *6 (E.D.N.C. July 9, 2013); Love-Moore, 2013 WL 5350870 at *2 ("consideration of Dr. Charles's opinion would not have altered the ALJ's conclusion that Love-Moore is not disabled ... [and thus], the ALJ's failure to consider Dr. Charles's opinion was harmless error"). Here, Dr. Wood's opinion was not mentioned or assigned any weight, and it is not clear whether the error would be harmless. The Commissioner urges that the ALJ's failure to discuss Dr. Wood's opinion "makes no difference to the ultimate conclusion," but does not adequately explain such assertion.
The Court may reverse the Commissioner's decision 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). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith, 782 F.2d at 1181-82 (remanding where ALJ's decision 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 where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence).
The Magistrate Judge recommends that this matter should be remanded. See DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) (absent an adequate explanation by the ALJ, "[j]udicial review of an administrative decision is impossible"). Upon remand, the ALJ should consider and discuss the evidence regarding Plaintiff's vocal cord impairment, its duration and severity, and any resulting functional limitations on Plaintiff's ability to communicate. On remand under sentence four, the ALJ should review the case on a complete record, including Dr. Wood's opinion (Ex. 28F). Because consideration of the above issues may impact the remaining sequential steps, consideration of the Plaintiff's remaining arguments is unnecessary at this time. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on a particular ground and declining to address additional grounds); Munns v. Astrue, No. 5:11-cv-393-SB, 2012 WL 3264999 (D.S.C. Aug. 10, 2012) ("the Court agrees with the Magistrate Judge that consideration of those claims is unnecessary at this time.").
RECOMMENDATION
Accordingly, the Magistrate Judge recommends that the Commissioner's final decision be REVERSED pursuant to Sentence Four of 42 U.S.C. § 405(g) and REMANDED to the Commissioner for further proceedings.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 17, 2018
Charleston, South Carolina