Opinion
No. 5:16-CV-00864-D
01-10-2018
Veronica Barefoot Pate, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Vera Barefoot Pate instituted this action on October 21, 2016, to challenge the denial of her application for social security income. Pate claims that the Administrative Law Judge ("ALJ") Mark C. Ziercher erred in his evaluation of the medical opinion evidence. Both Pate and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 14, 19.
After reviewing the parties' arguments, the court has determined that ALJ Ziercher erred in reaching his decision. The undersigned finds that ALJ Ziercher's evaluation of the medical opinion evidence and his decision to afford little weight to the opinions of Pate's treating providers are not supported by substantial evidence. Therefore, the undersigned magistrate judge recommends that the court grant Pate's motion, deny Berryhill's motion, and remand the matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
On August 6, 2012, Pate filed an application for disability insurance benefits, alleging a disability that began on June 1, 2006. After her claim was denied at the initial level and upon reconsideration, Pate appeared before ALJ Ziercher for an initial hearing on August 7, 2014, and for a supplemental hearing on December 10, 2014, to determine whether she was entitled to benefits. ALJ Ziercher determined Pate was not entitled to benefits because she was not disabled. Tr. at 17-34.
ALJ Ziercher found that Pate had engaged in substantial gainful activity since her alleged onset date, June 1, 2006, through December 31, 2009. Thus, he found that during the period of her substantial gainful activity, she was not disabled. He also determined that there had been continuous 12 month period(s) in which Pate did not engage in substantial gainful activity between her alleged onset date and her date last insured, December 31, 2014. His decision addresses such periods. Tr. at 20.
ALJ Ziercher found that Pate had the following severe impairments: a major depressive disorder and generalized anxiety/panic disorder. Tr. at 20. ALJ Ziercher found that Pate's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 21. ALJ Ziercher then determined that Pate had the residual functional capacity ("RFC') to perform a full range of work at all exertional levels. Tr. at 23. Her RFC finding had additional limitations. Id. Pate can understand, remember, and perform tasks at a GED Reasoning Level 03 and can perform productive work tasks for up to an average of 90-95% of an eight-hour workday, not including typical morning, lunch, and afternoon breaks. Id. Pate can perform goal-oriented rather than production-oriented work (e.g., the performance of work tasks in an allotted time is more important than the pace at which the tasks are performed). Id. She can perform work that involves routine tasks (i.e, no more than frequent changes in core work duties on a monthly basis). Id. Pate can have frequent contact with coworkers and supervisors that is inconsequential or superficial (i.e., no sustained conversations, e.g., mail clerk). Id. She can also have occasional contact with the general public that is inconsequential or superficial (i.e., no sustained conversations, e.g., ticket taker). Id.
ALJ Ziercher concluded that Pate was unable to perform any past relevant work as a customer service supervisor. Tr. at 31. ALJ Ziercher found, however, that considering her age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Pate was capable of performing. Tr. at 32-33. These include: housekeeper, hand packager, and assembler of small products. Tr. at 32. Thus, ALJ Ziercher found that Pate was not disabled. Tr. at 33-34.
After unsuccessfully seeking review by the Appeals Council, Pate commenced this action on October 21, 2016. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to the determination of whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Pate has a history of mental health issues. In 2011, she reported to her primary care physician symptoms of tiredness, depression, anxiety, and anhedonia in caring for her husband. Tr. at 456, 471. In August 2011, Pate began seeing Dr. Robert Matlack at Fayetteville Psychiatric Associates. Tr. at 563-65. Her symptoms included lack of concentration, diminished ability to think, tangential thinking, and psychomotor retardation. Id. Dr. Matlack's treatment records from 2011 and 2012 reflect she was inattentive, disorganized, forgetful, tearful, upset, and had a labile mood. Tr. at 548, 554. 562.
Records from June 2012 note that Pate continued to experience depression and anxiety despite receiving treatment. Tr. at 541. The following month, Dr. Matlack observed that Pate displayed easy distractibility, depressed mood, decreased need for sleep, easy agitation, restlessness, and recurrent thoughts about death with more bipolar-like symptoms. Tr. at 537. He also observed that she was not benefitting from her medications. Id. Treatment notes from August 2012 reflect that Pate had high anxiety levels, labile mood, and confusion, and she responded poorly to medication. Tr. at 535-36. Although Dr. Matlack suggested hospitalization, Pate felt she could not be hospitalized because of her family's dependence upon her. Id.
Around the same time, Dr. Martina Monroe, Pate's primary care physician, noted she displayed chronic fatigue with depressed mood and affect, constant tearfulness, and an inability to concentrate. Tr. at 610. The next month, Cumberland County Mental Health noted Pate was overwhelmed, tearful, and had a depressed affect with easy distractibility and tangential thinking. Tr. at 569-74.
In the following months, Dr. Matlack remarked that Pate was having difficulty coping and continued to experience sad moods, low motivation, and difficulty sleeping, that were not helped by medications. Tr. at 602-05. In December, Pate declined Dr. Matlack's suggestion that she be hospitalized. Tr. at 600.
Dr. Monroe's records from May 2013 note that Pate's depression was worsening, she was tearful and unkempt, and she responded poorly to treatment. Tr. at 613. Dr. Monroe also remarked that Pate had "extreme" anxiety and depression and she could not tolerate being around others. Id. Dr. Monroe noted that Pate suffered from major depression, anxiety, and social phobia. Tr. at 617. She opined that these mental impairments resulted in the following limitations: marked impairment in the ability to understand and carry out very short and simple instructions and to understand, remember, and carry out detailed instructions; marked impairment in her ability to work with others, to accept supervision, and get along with coworkers; and extreme impairment in her abilities to maintain attention and concentration to interact appropriately with the general public. Id. Dr. Monroe remarked that Pate's condition had progressively declined since August 2012. Id. Her depression had worsened and she had an inability to focus or concentrate. Id.
Around this same time, Dr. Matlack's treatment records reflect that Pate suffered from anhedonia, sleep disturbance, psychomotor agitation, decreased energy, difficulty concentrating, anxiety, motor tension, and autonomic hyperactivity. Tr. at 789. He did not express an opinion on her functional limitations. Id. In June 2013, Constance Skoglund, a licensed clinical social worker with Midtown Counseling, assessed Pate's mental condition. Tr. at 652-54. She noted Pate's depressive and anxiety-related symptoms, including recurrent severe panic attacks, and observed that her condition and functioning had markedly declined. Id. She opined that Pate had marked limitations in performing activities of daily living and extreme limitations in social functioning. She also noted that Pate had deficiencies in maintaining concentration, persistence, or pace resulting in a frequent failure to complete tasks in a timely manner. Id.
Pate also received care from Dr. William Laurence, a primary care physician at Hoke Family Practice. In November 2013, Dr. Laurence observed that Pate was talkative but had difficulty getting to the point. Tr. at 803. Two months later, he noted that she continued to be anxious and depressed. Tr. at 809. In March 2014, Dr. Laurence opined that Pate suffered from depression with severe panic attacks and she displayed hopelessness, difficulty concentrating, tearfulness, difficulty functioning, nervousness, social phobias, and occasional agoraphobia. Tr. at 800. His treatment notes reflect that Pate awoke with panic attacks and was very depressed. Tr. at 812. Her mental status exam showed anxiousness, depression, and tearfulness. Tr. at 814. After she regained insurance coverage, Dr. Laurence advised Pate to resume treatment at a psychiatric facility. Tr. at 819-20.
In May 2014, Pate began seeing Aimee Mattazaro, a licensed clinical social worker at the Haymount Institute. Tr. at 823. Pate reported only minimal success with therapy. Id. Her mental status examination showed that she was tearful, disheveled, hopeless, and had tangential and circumstantial thought processes. Tr. at 825-26. Records note that Pate began crying during her therapy session. Tr. at 834. She recounted an experience where she had to be escorted out of a store because of a panic attack. Id. Mattazaro's notes reflect that Pate talked incessantly and it was difficult to redirect her or to make comments. Tr. at 841, 845, 852-53.
Pate was observed crying uncontrollably in the waiting room prior to a session in June 2014. Tr. at 854. Mattazaro noted she was overwhelmed, anxious, and shaky and that when these episodes occurred, and she had to sit in her car until she calmed down. Id. Treatment notes also reflect that it took several sessions to get Pate to calm down long enough to be able to discuss her symptoms. Tr. at 855.
In July 2014, Mattazaro noted that Pate did not seem stable, as she was again tearful and shaky. Tr. at 857. Pate declined Mattazaro's recommendation that she seek hospitalization. Id. Later that month, Mattazaro issued her opinion on Pate's condition. Tr. at 868-69. She noted the presence of the following symptoms: anhedonia, sleep disturbance, psychomotor disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, paranoid thinking and generalized persistent anxiety. Id. Mattazaro further remarked that Pate displayed vigilance and scanning, persistent irrational fear of a specific object, recurrent severe panic attacks, and recurrent obsessions or compulsions which are a source of marked distress. Id. Mattazaro opined that these symptoms resulted in marked impairments in social functioning and activities of daily living. Id. She also found that Pate had deficiencies in concentration, persistence, and pace which could result in the failure to complete tasks in a timely manner. Id. She further believed that Pate had experienced episodes of decompensation. Id. Mattazaro opined that Pate was too mentally unstable to search for or maintain employment at this time. Tr. at 869.
In September 2014, Pate stated that she continued to experience panic attacks and that she spent most of her day in bed. Tr. at 904, 908-11. Her mental status examination revealed that she was disheveled, tearful, depressed, hopeless, helpless, and had poor insight with poorly controlled symptoms. Id. Treatment records from later that month reflect that medications were not helpful and that Pate had made little progress. Tr. at 900. Nonetheless, Mattazaro felt the therapy appointments were helpful because they got Pate out of the house. Id.
The following month, Pate again reported that she spent most of her day in bed. Tr. at 892, 896. She also remarked that she experienced poor sleep and waking with panic attacks four to five times per night. Tr. at 892. Mattazaro observed that Pate continued to ramble during her therapy sessions. Tr. at 882, 884. Mattazaro opined that Pate was not mentally stable enough to do much more than lay in bed most of the day and medications would not be much help. Tr. at 890.
D. Does Substantial Evidence Support ALJ Ziercher's Determination?
Pate argues that ALJ Ziercher erred in weighing the medical opinion evidence from her treating providers. Evidence from these sources, she contends, establishes that she has limitations which satisfy Listing 12.04 (affective disorders)., Pate also asserts that ALJ Ziercher failed to properly explain why he gave the opinions from her treating sources less weight. The Commissioner asserts that ALJ Ziercher properly considered the opinion evidence. The court finds that ALJ Ziercher erred in his evaluation of the medical opinion evidence.
Listing 12.04 (affective disorders):
A. Medically documented persistence, either continuous or intermittent, of one of the following:
Depressive syndrome characterized by at least four of the following: Anhedonia or pervasive loss of interest in almost all activities; appetite disturbance with change in weight; sleep disturbance; psychomotor agitation or retardation; decreased energy; feelings of guilt or worthlessness; difficulty concentrating or thinking; thoughts of suicide; or hallucinations, delusions or paranoid thinking[.]To satisfy Paragraph C, a claimant must show two two of the following:
Marked restriction of activities of daily living; marked difficulties in maintaining social functioning; deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or repeated episodes of deterioration or decompensation, in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
Pate also argues that she meets the criteria for Listing 12.06.
1. Overview of Listing 12.04
The version of Listing 12.04 (affective disorders) in effect at the time of ALJ Ziercher's decision, required a claimant to meet subparts A or B and also to establish the existence of subparagraph C. Pate contends the medical evidence establishes the requisite Paragraph A criteria and, further, that the opinions of her treating providers demonstrate that she meets the Paragraph C factors. In rejecting these opinion, ALJ Ziercher concluded that Pate did not meet Paragraph C.
However, he did not address whether Pate could establish the Paragraph A criteria for this Listing. The Commissioner does not dispute Pate's argument that she satisfies Paragraph A. Indeed, a review of the medical record indicates she displayed symptoms of anhedonia, sleep disturbances, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, and difficulty concentrating or thinking. The presence of four of these symptoms is sufficient to meet the Paragraph A criteria for Listing 12.04.
Thus, the undersigned turns to whether Pate's symptoms meet the requisite Paragraph C criteria. Such a determination is informed by the medical opinion evidence in the record and how an ALJ is to evaluate it.
2. Medical Opinion Evidence
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F. Supp. 2d 740, 752 (N.D.W. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chafer, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, namely, the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
The factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") not given controlling weight also apply to the opinions of providers who are deemed to be at a different professional level, or so-called "other sources." SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). As with opinions from physicians and psychologists, the ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013). The fact that an opinion is from an acceptable medical source may justify giving that opinion greater weight than an opinion from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. SSR 06-03p, 2006 WL 2329939, at *5.
The opinions of examining, but non-treating sources, and non-examining sources are evaluated and weighted under the same standards as the opinions of treating medical sources that are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2. Opinions of a treating source are generally given more weight than the opinions of a non-treating examining source. Secondly, opinions of an examining source are generally given more weight than the opinions of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may carry more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved for the Commissioner, such as the issue of disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and accord them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
3. ALJ Ziercher's Determination
As noted above, several of Pate's treating providers opined that she displayed at least marked impairments in social functioning and activities of daily living and further concluded that she had deficiencies in concentration, persistence and pace deficiencies which could result in the failure to complete tasks in a timely manner. ALJ Ziercher's reasoning for according little weight to the opinions of Pate's treating physicians, and his assessment of Pate's statements of her symptoms and resulting limitations, is flawed in several respects. The reliability of his decision is undermined where his consideration of the evidence is unsound. In such circumstances, remand is warranted.
a. Medical Expert Testimony
First, the undersigned notes that the Regulations allow an ALJ to use a medical expert ("ME") under various circumstances when such testimony is beneficial to the disability inquiry. See Soc. Sec. Admin., Office of Hearings and Appeals, Hearings, Appeals and Litigation Law Manual ("HALLEX") 1-2-5-34 (Apr. 1, 2016). However, affording more weight to that source's opinion while simultaneously citing invalid reasons to discredit the assessments offered by treating providers is problematic. Here, ALJ Ziercher relied on the testimony of Billings S. Fuess, Ph.D., to deny Pate's claim despite extensive evidence of her mental health impairments, the attendant symptoms and resulting limitations, the failure of medications or therapy to render measurable benefit to her conditions, and her providers' consistent findings and observations over the course of several years documenting her persistent and worsening depression and anxiety.
The testimony of the ME, who did not examine Pate but formed an opinion upon a review of the record, is inconsistent with the treatment notes and findings of no fewer than five treating sources. His testimony is further undermined by the fact the Pate's treatment providers appear to have made similar observations and assessments regarding her symptoms and limitations. The consistency of the treating sources' findings constitutes substantial evidence to support their opinions. In these circumstances, the court cannot conclude that substantial evidence supports neither Dr. Fuess's opinion nor ALJ Ziercher's determination.
b. Characterization of Pate's Mental Health Condition
The reasons ALJ Ziercher sets out to support his conclusions about the medical opinion evidence contain several mistakes. For example, in discounting the limitations assessed by Pate's treating providers, ALJ Ziercher cited her "unremarkable" mental status examination findings. Tr. at 22, 27, 28. He then referenced treatment notes stating that Pate had normal eye contact, goal-directed thoughts, fair insight and judgment, full orientation, good attention, and was pleasant and cooperative. Id. at 27-28. But, the decision references treatment notes that Pate presented to a new counselor in 2014 who observed she was stressed, anxious, and sad, with pressured speech, a flattened affect, impaired memory, and poor insight and judgment. Id. at 28. ALJ Ziercher also remarked that, later that year, Pate's therapist described her as stressed and completely overwhelmed. Id.
The record casts further doubt on ALJ Ziercher's characterization of Pate's overall mental health condition as generally normal or unremarkable. In 2011, Pate reported symptoms of tiredness, depression, anxiety, and anhedonia. Tr. at 456, 471. Later that year, Dr. Matlack noted her lack of concentration, diminished ability to think, tangential thinking, and psychomotor retardation. Tr. at 563-65. His treatment records reflect she was inattentive, disorganized, forgetful, tearful, upset, and had a labile mood. Tr. at 548, 554, 562. In 2012, Dr. Matlack noted Pate's easy distractibility, depressed mood, decreased need for sleep, easy agitation, restlessness, and recurrent thoughts about death. Tr. at 537. Dr. Matlack's treatment records note Pate experienced symptoms of anhedonia, sleep disturbance, psychomotor agitation, decreased energy, difficulty concentrating, anxiety, motor tension, and autonomic hyperactivity. Tr. at 789.
Similarly, Dr. Monroe's records reflect that Pate displayed fatigue with depressed mood and affect, constant tearfulness, and an inability to concentrate. Tr. at 610. She remarked that Pate was unkempt and had social limitations and phobias. Id. at 613. Cumberland County Mental Health described Pate as overwhelmed, tearful, and having a depressed affect with easy distractibility and tangential thinking. Tr. at 569-74.
Dr. Laurence observed that Pate was talkative but had difficulty getting to the point. Id. at 803. He, too, noted that she displayed hopelessness, difficulty concentrating, tearfulness, difficulty functioning, nervousness, and social phobias. Tr. at 800. Her mental status exam showed anxiousness, depression, and tearfulness. Tr. at 814.
Mattazaro's mental status examination yielded similar findings. It noted Pate was tearful, disheveled, and hopeless, with tangential and circumstantial thought processes. Treatment records state that Pate began crying during her therapy session. Tr. at 834. Pate talked incessantly and it was difficult to redirect her or make comments. Mattazaro observed that Pate did not seem stable. Pate presented with anhedonia, sleep disturbance, psychomotor disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, paranoid thinking, and generalized persistent anxiety. Id. A September 2014 mental status examination revealed that Pate was disheveled, tearful, depressed, hopeless, helpless, and had poor insight. The following month, Pate reported that she spent most of her day in bed.
Pate's overall mental health condition cannot reasonably be categorized as normal or unremarkable. ALJ Ziercher should not have discounted the treating providers' opinions based on isolated pieces of evidence that do not represent Pate's full mental health condition. His rationale for discounting the opinions of Pate's treating providers based on generally normal or unremarkable findings is an inaccurate representation of the record. Accordingly, this proffered reason for failing to accord the assessments of these providers more weight is not supported by substantial evidence.
c. Opinions Expressed in Check-Box Form
Next, ALJ Ziercher erred by criticizing and discrediting the opinions of providers who utilized check-box forms to describe Pate's symptoms and limitations. Check-box or fill-in-the-blank forms are typically considered to be weak evidence. Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993). However, they may import greater significance when their content is supported by medical records. See Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014) ("[O]pinions expressed in check-box form [by the treating source] were based on significant experience with [the claimant] and supported by numerous records, and were therefore entitled to weight that an otherwise unsupported and unexplained check-box form would not merit."); Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (substantial evidence did not support ALJ's decision to reject treating physician's "check box" opinion where the opinion was supported by clinical evidence, including the physician's own treatment notes, and was not inconsistent with other evidence in the record); Moore v. Astrue, No. C 07-1218 PJH, 2008 WL 2811983, at *8 (N.D. Cal. July 21, 2008) (rejecting proposition that an ALJ may reject a physician's opinion simply because it is in checkbox form as such an explanation failed to provide an adequate reason for rejecting a physician's opinion).
Although assessments from Drs. Matlack, Monroe, and Laurence as well as Skoglund, Johnson, and Mattazaro are on check-box forms, the record contains additional clinical notes from these providers addressing Pate's treatment and status which inform their opinions. Moreover, check-box forms are regularly used by both providers and consultants in the disability determination process. See Stancato v. Comm'r of Soc. Sec., No. 5:13 CV 1519, 2014 WL 4792560, at *6 (N.D. Ohio Sept. 24, 2014) (noting that check-box forms are routinely used by state agency reviewers). Thus, the format alone is not a reasonable basis to dismiss the assessments of these treating providers.
d. Length of Treatment Relationship
ALJ Ziercher cited the limited treatment Dr. Monroe and Mattazaro provided to Pate as a reason to discount their findings. Tr. at 28. Their records reflect, however, that they were treating providers who provided cared for Pate over the course of several months. Without characterizing their treatment as limited or lengthy, both Dr. Monroe and Mattazaro had a treating relationship with Pate which should lend support to their assessments. Accordingly, this reason offered by ALJ Ziercher to limit the relevance of these providers' findings lack sufficient support.
Moreover, neither the medical expert nor the state agency reviewers, whose opinions were given significant weight, treated Pate. Their assessments are based solely upon a review of the record. It is difficult to understand how ALJ Ziercher could fault a treating source for an insubstantial treatment history while simultaneously affording more weight to non-examining sources, who have no treatment relationship with a claimant.
e. Providers' Area of Specialty
ALJ Ziercher also erred in discounting the opinions of Drs. Laurence and Monroe by noting their specialty was not mental health. Tr. at 28, 29. An opinion on a matter within a provider's specialty may support affording more weight to the opinion offered. 20 C.F.R. § 404.1527(c). But the Regulations make it clear that an ALJ is to evaluate every medical opinion. 20 C.F.R. § 404.1527(b). Both Drs. Monroe and Laurence are licensed physicians with training as medical doctors. They provided mental health care to Pate. It does not follow that a physician should have his opinion rejected outright as to medical issues that are not related to his area of specialty. See Doud v. Comm'r of Soc. Sec., 314 F. Supp. 2d 680 (E.D. Mich. 2003) (finding ALJ erred in disregarding the merits of treating physician's opinion, on basis that he was not a mental health specialist, even though opinion was consistent with the medical evidence and claimant's statements and physician had treated claimant for over five years); 20 C.F.R. § 404.1513(a)(1) ("Acceptable medical sources are . . . Licensed physicians"). Moreover, given the treatment relationship these providers had with Pate, coupled with the fact that their opinions find both consistency and supportability in the record, ALJ Ziercher erred in citing their lack of mental health specialization as a basis to decline to accord their findings more weight.
f. Opinions from "Other Sources"
ALJ Ziercher's determination is also flawed because it discredits the assessments of treating sources who are not considered "acceptable medical sources" under the Regulations. As noted above, the Regulations require an ALJ to consider all medical evidence, regardless of its source. 20 C.F.R. § 404.1513, 20 C.F.R. 404.1527(f). While providers such as Mattazaro, Johnson, and Skoglund, all licensed clinical social workers, are not considered "acceptable medical sources," the Regulations advise that evidence from "other sources," including social workers, may be used to show impairment severity and its impact on an ability to work. Id. at § 1513(d); SSR 06-3p, 2006 WL 2329939, at *3 (noting that opinions from health care providers who are not acceptable medical sources, including licensed clinical social workers, "are important and should be evaluated on key issues such as impairment severity and functional effects").
While ALJ Ziercher was not required to accept the assessments of Mattazaro, Johnson, or Skoglund, their lack of status as "acceptable medical sources" is not a basis to discredit their records and findings altogether as they offer additional insight into Pate's status. Bonnell v. Astrue, 650 F. Supp. 2d 948 (D. Neb. 2009) (the opinions of licensed clinical social workers are important and should be evaluated on key issues, such as impairment severity and functional effects). Thus, although they may not establish the existence of a medically determinable impairment or constitute a medical opinion, the records and assessments from Mattazaro, Johnson, and Skoglund are nonetheless relevant because they offer broader understanding of Pate's functioning and limitations and provide support for the opinions of Drs. Laurence and Monroe. Therefore, this reasons offered by ALJ Ziercher as a basis to disregard these providers' findings lacks merit.
g. Lack of Defined Terms
ALJ Ziercher also supported his decision to assign little weight to Dr. Laurence's and Mattazaro's findings because their assessments did not define "marked" and "extreme" nor show that they were familiar with how the Regulations define these terms. Tr. at 30. However, there is no evidence that these providers were unfamiliar with Regulations and their definitions of these terms nor is it appropriate for an ALJ to presume a lack of knowledge. ALJ Ziercher's assumption that Dr. Laurence or Mattazaro was uninformed as to the Social Security Administration's use of these terms lacks support. To the extent ALJ Ziercher doubted a provider's understanding of those terms under the Regulations, he should have re-contacted that provider for clarification. 20 C.F.R. § 404.1512(e)(2006) (requiring an ALJ to re-contact a medical source for clarification if a report from the medical source contains a conflict or ambiguity). Thus, this reason offered by ALJ Ziercher for discrediting the opinions of Dr. Laurence and Mattazaro lacks support.
The Regulations in effect at the time of ALJ Ziercher's determination did not specifically define what a "marked" limitation in these functional areas meant other than to say it lays between a moderate and an extreme limitation. 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings 12.00 et. seq. (2007). The Listings note that "marked" is not defined by a specific number of activities of daily living that are impaired, different behaviors in which social functioning is impaired, or by a specific number of tasks a claimant is unable to complete, but by the nature and overall degree of interference with function. Id. §§ 404.1520a(c)(4). "A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." Id.
Although in effect at the time of ALJ Ziercher's decision, this Regulation has since been amended and no longer addresses an ALJ's obligation to re-contact a source. --------
h. Reasons to Discount Claimant's Statements
ALJ Ziercher's assessment of Pate's credibility is also suspect. He found Pate to be partially credible because (1) Pate's statements of her "limited daily activities cannot be objectively verified with any reasonable degree of certainty" and (2) even if she were so limited, "it is difficult to attribute that degree of limitation to the claimant's medical condition, as opposed to other reasons[.]" Tr. at 26. ALJ Ziercher erred in making such findings.
The Commissioner does not argue, nor is there any requirement, that a claimant's reported activities be verified with objective evidence in order to be credible. The Regulations simply state that a claimant's statements will be evaluated in relation to the objective medical evidence and other evidence. See 20 C.F.R. § 404.1529(c)(4) ("We will consider your statements about the intensity, persistence, and limiting effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and other evidence . . . We will consider whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest of the evidence[.]"). Thus, while a claimant need not produce objective evidence of how her symptoms limit her functioning, the available objective evidence can be used contradict or discredit her subjective claims. Id. See also Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) ("There is no practical difference between requiring a claimant to prove pain through objective evidence and rejecting her subjective evidence because it is not corroborated by objective evidence.").
Moreover, the nature of activities of daily living suggest that objective verification may not be possible. See Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990) ("Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree, or functional effect of pain is not determinative."); Kendle v. Colvin, No. 3:16-cv-27, 2016 WL 7337147, at *20 (N.D.W. Va. Nov. 30, 2016) ("[H]ow an ALJ would "verify" a plaintiff's daily activities is equally unclear."), adopted by, 2016 WL 7335638 (Dec. 16, 2016). Other courts have declined to affirm a credibility determination that required similar proof where the credibility assessment lacked the support of substantial evidence. Beardsley v. Colvin, 758 F.3d 834, 837-38 (7th Cir. 2014); Bonner v. Colvin, No. 5:15-cv-03332, 2016 WL 4408831, at *17 (S.D.W. Va. Jul. 27, 2016); Roxin v. Comm'r of Soc. Sec., No. SAG-14-2311, 2015 WL 3616889, at *3 (D. Md. June 5, 2015); Holloway v. Astrue, No. 8:10-1357-JFA-JDA, 2011 WL 1374885, at *11 (D.S.C. Mar. 30, 2011), adopted by, 2011 WL 1376884 (Apr. 12, 2011); Mathews v. Astrue, No. 09-cv-385-FHM, 2010 WL 3168104, at *2 (N.D. Okla. Aug. 10, 2010).
The language ALJ Ziercher used does not require remand where the reasons for the credibility determination are otherwise adequately explained. See Blackwell v. Colvin, No. 1:14-CV-00085-MOC, 2014 WL 7339132, at *6 (W.D.N.C. Dec. 23, 2014) (ALJ's error that claimant's daily activities were not "objectively verifiable" was harmless error because his credibility determination was supported by other substantial evidence of record); Baysden v. Colvin, No. 4:12-CV-303-FL. 2014 WL 1056996, at *6-7 (E.D.N.C. Mar. 18, 2014). But remand is appropriate where, as here, the credibility determination is not supported by substantial evidence.
ALJ Ziercher concluded he could not attribute the degree of Pate's limitation to her medical condition. Despite this statement, ALJ Ziercher found that Pate's "medically determinable impairments could reasonably be expected to cause in general the alleged symptoms and limitations[.]" Tr. at 26. It is unclear how ALJ Ziercher determined that Pate had impairments that could reasonably be expected to cause the symptoms alleged but, at the same time, conclude that he had difficulty attributing her limitations to her medical condition. ALJ Ziercher does not explain what reasons, other than her medical condition, might account for Pate's symptoms.
A review of the medical evidence demonstrates not only that her symptoms are correlated to her mental health conditions but also that her signs are sufficiently severe that they could produce limitations to the degree she alleges. As noted above, Pate's treating providers consistently noted her depression and anxiety. They also remarked that she had easy distractibility, difficulty concentrating or thinking, tearfulness, and panic attacks stemming from her mental impairments. They repeatedly indicated her condition failed to improve with medication. Providers also noted that she spent most of her day in bed and she was advised to get inpatient treatment on at least three occasions. Given this evidence, the basis for ALJ Ziercher's credibility finding—that her symptoms could be attributed to another, but unidentified cause—is unpersuasive.
For these reasons, ALJ Ziercher erred in concluding that Pate was not fully credible. In light of Pate's reported limitations, the consistent and persistent nature of her impairments, the continuing nature of her symptoms despite medications and mental health treatment, and the lack of inconsistent evidence in the record undercutting her allegations, ALJ Ziercher erred in discrediting Pate's statements. The credibility assessment cited minimal findings that fail to undermine her statements or the other substantial evidence of record which supports them. Thus, remand for further consideration of this issue is appropriate.
i. Other Errors
ALJ Ziercher concluded that the limitations assessed by Dr. Laurence would require inpatient hospitalization. Tr. at 29. This statement is flawed in several respects. First, neither Listing 12.04 nor 12.06 require inpatient hospitalization to deem a claimant's symptoms sufficiently severe to meet the Listings' criteria. ALJ Ziercher appears to have based the significance of inpatient treatment on his lay view, as the medical evidence fails to disclose a medical source opinion noting such symptom severity would necessitate inpatient treatment. Additionally, a review of the medical evidence indicates that Dr. Laurence advised Pate to obtain inpatient treatment on at least two occasions. Mattazaro similarly recommended Pate be hospitalized for treatment of her mental health condition. Contrary to ALJ Ziercher's statement, Pate's symptoms warranted such a course of care.
ALJ Ziercher also erred in relying on Dr. Fuess testimony. His decision mentions that both Dr. Fuess and the state agency reviewers found that Pate had no more than moderate restriction in social functioning or in concentration, persistence, or pace. Tr. at 22. He then states that there was no evidence contradicting these findings or showing more limitation. Id. Given the assessments of Dr. Monroe, Skoglund, and Mattazaro specifically noting Pate was more than moderately limited in these areas, ALJ Ziercher's statement is clearly erroneous.
ALJ Ziercher also noted Dr. Fuess's testimony that the record showed Pate displayed good attention. Tr. at 29, 56. This is mischaracterizes the overall record which consistently noted her easy distractibility, inattentiveness, lack of concentration, diminished ability to think, and tangential thinking. Multiple providers remarked on Pate's impaired ability to maintain concentration, persistence, or pace. ALJ Ziercher himself found that she had moderate limitations in this functional area. Tr. at 22. Dr. Fuess also found her restricted to concentration in two-hour segments. Tr. at 29.
Dr. Fuess also testified that Pate displayed adequate grooming. Tr. at 48. This is unrepresentative of the overall record where multiple treatment notes observed she appeared disheveled and unkempt. Dr. Fuess opined that Pate's prognosis was guarded, which meant that even with a commitment to treatment, she may experience negative changes in functioning going forward. Tr. at 53, 56.
Finally, ALJ Ziercher discounted Mattazaro's treatment notes because Dr. Fuess noted that they failed to support her findings. Tr. at 25, 29. This finding is unsupported by the record. Mattazaro's treatment records corroborate the marked functional limitations she assessed. She noted Pate was tearful, disheveled, hopeless, and had tangential and circumstantial thought processes in May 2014. Subsequent treatment notes reflect that Pate cried both before and during her therapy sessions, talked incessantly, had difficulty calming down, and recounted having to be escorted from a store because of a panic attack. Mattazaro observed that Pate was overwhelmed, anxious, and shaky and showed symptoms of anhedonia, sleep disturbance, psychomotor disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, paranoid thinking and generalized persistent anxiety. Given Pate's presentation and behavior, Mattazaro concluded that she had marked impairments in social functioning and activities of daily living as well as deficiencies in concentration, persistence and pace. The severity of these symptoms led Mattazaro to recommend inpatient treatment. Mattazaro further determined that Pate's condition rendered her mentally unstable to do much more than lay in bed most of the day. Clearly, this evidence confirms the degree of limitation set forth by Mattazaro. Moreover, Mattazaro's treatment notes and assessment are consistent with the records and opinions of Drs. Monroe and Laurence.
In sum, if ALJ Ziercher had properly evaluated the medical evidence, it is arguable that the assessments of Pate's treating providers would have been afforded more weight. Had their opinions regarding her limitations in social functioning, activities of daily living, or concentration, persistence, or pace been fully credited, it is arguable that she would meet Listing 12.04.
Accordingly, remand is appropriate.
III. Conclusion
For the forgoing reasons, the court recommends that the court grant Pate's Motion for Judgment on the Pleadings (D.E. 14), deny Berryhill's Motion for Judgment on the Pleadings (D.E. 19), and remand the matter to the Commissioner for further consideration.
Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: January 10, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge