Opinion
C/A 1:19-3405-BHH-SVH
10-05-2020
Stephen Root, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On April 11, 2017, Plaintiff protectively filed an application for DIB in which he alleged his disability began on July 1, 2016. Tr. at 72, 154-57. His application was denied initially and upon reconsideration. Tr. at 87-90, 98- 101. On June 26, 2019, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Colin Fritz. Tr. at 31-58 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 31, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 11-30. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed December 6, 2019. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 38 years old at the time of the hearing. Tr. at 35. He obtained a college degree in liberal studies. Id. His past relevant work (“PRW”) was as a trucking dispatcher, mail handler, material expediter, infantry weapons crew member, and marksmanship instructor. Tr. at 51-53. He alleges he has been unable to work since July 1, 2016. Tr. at 154.
2. Medical History
Plaintiff presented to nurse practitioner Jerome Francis Mega, Jr. (“NP Mega”), to establish care on May 31, 2016. Tr. at 647. He complained of eczema, low back pain, depression, and pain and stiffness in his spine and reported diagnoses of arthritis of the spine and post-traumatic stress disorder (“PTSD”) with prior inpatient and outpatient treatment. Tr. at 647-48. NP Mega noted normal findings on physical exam. Tr.at 649-50. He assessed chronic low back pain, PTSD/depression, eczema, elevated prostate-specific antigen, and a history of elevated liver enzymes. Tr. at 650. He prescribed Zoloft, Bactrim, Lidex, Motrin, and vitamin D3 and ordered x-rays of Plaintiff's lumbar spine. Id.
Plaintiff presented to John Jachna, M.D. (“Dr. Jachna”), for treatment of PTSD on August 10, 2016. Tr. at 625. He reported he had run out of Sertraline because he was not familiar with the refill system. Tr. at 626. He complained of feeling unhappy about his situation and depressed from two hours to a day at a time. Id. He admitted his depression was highly related to situational factors. Id. He indicated he felt as if he had developed symptoms of intermittent explosive disorder (“IED”) prior to his service that sometimes manifested apart from symptoms of PTSD. Id. He stated he had developed symptoms of psychosis within the prior eight months that included hearing children playing and water running. Id. He described himself as hypercautious, but denied being overtly paranoid. Id. He reported difficulty falling asleep and waking due to disturbing dreams and irritability over the prior month. Id. He admitted he had been hospitalized for 10 days in 2006 for suicidal ideation. Tr. at 627. He endorsed multiple prior suicide attempts and periods of suicidal ideation with plan. Id. He reported being separated from his wife and children, who hated him for leaving. Id. He indicated he was living with a girlfriend, who suffered from addiction problems, and her teenage son. Id. Dr. Jachna noted Plaintiff was reserved, had mildly dysphoric mood, and endorsed homicidal ideation, but denied intent or plan. Tr. at 629. He assessed PTSD, IED, unspecified personality disorder, and alcohol use disorder in remission. Tr. at 630. He prescribed Sertraline 100 mg and encouraged Plaintiff to continue therapy. Tr. at 630-31.
Plaintiff and his girlfriend presented to Carlene Wentworth, Ph.D. (“Dr. Wentworth”), on October 3, 2016. Tr. at 292. Plaintiff's girlfriend reported that he had recently threatened her on two occasions by placing a gun to her head, after he had been drinking. Id. Dr. Wentworth noted that neither Plaintiff nor his girlfriend was working and his girlfriend did not want for him to be away from her even for short periods. Id. Plaintiff indicated he had lost contact with his children, family members, and friends and was unable to return to his job at the post office. Id. Dr. Wentworth noted that Plaintiff's relationship with his girlfriend had placed his life “in a serious downward spiral.” Id. She recommended a plan for cognitive behavioral therapy, emotion-focused therapy, hypnotherapy, coherence therapy, and neuro-linguistic programming therapy. Id.
Plaintiff complained of recent epigastric pain and hemoptysis on October 25, 2016, and described a similar episode two years prior. Tr. at 622. NP Mega referred Plaintiff to the gastrointestinal clinic for an esophagogastroduodenoscopy. Tr. at 623.
On December 3, 2016, Dr. Wentworth observed that Plaintiff appeared tired upon presentation. Tr. at 291. Plaintiff reported he had recently served six days in jail for having failed to pay child support. Id. He indicated his girlfriend's family had paid a fine so he could avoid spending six months in jail. Id. He said he had sold his two guns because he feared he would do something terrible if he kept them, but still had knives and brass knuckles. Id. Plaintiff reported he had contacted the crisis hotline twice over the prior six weeks because of suicidal thoughts. Id. Dr. Wentworth noted that Plaintiff's life had been in a downward spiral over the prior year, as he had left his wife and children and a stable job. Id. She indicated Plaintiff's relationship with his girlfriend had destabilized him, primarily because of his girlfriend's alcoholism and other addictive processes. Id. She recognized that Plaintiff's little money and sporadic visits made it difficult to provide the help he needed to address trauma from his childhood and combat experience. Id.
On December 8, 2016, Plaintiff reported his anger and depression had worsened with Sertraline. Tr. at 614. He endorsed periodic homicidal ideation, but had no plan to act on it. Id. He reported increased nightmares involving military themes and generalized violence. Id. He requested to remain out of work. Id. Dr. Jachna noted mildly dysphoric mood and periodic homicidal ideation on mental status exam (“MSE”). Tr. at 615. He advised Plaintiff to taper off Sertraline and start on Buspar. Id.
On February 8, 2017, Dr. Wentworth observed that Plaintiff appeared tense and had shaved his head. Tr. at 290. Plaintiff indicated he intended to file for bankruptcy and was scheduled for inpatient treatment from February 21 to March 31. Id. He requested to bring his children in for family therapy upon completing inpatient treatment. Id. He stated Buspar was providing no relief and he was not sleeping. Id. Plaintiff's girlfriend reported she was afraid of him at times, but Plaintiff indicated he had been able to control his actions. Id. He desired to control his anger, talk normally, and avoid becoming aggressive. Id. Dr. Wentworth noted that Plaintiff's PTSD had worsened and that inpatient treatment was likely the most appropriate course of action. Id.
On February 16, 2017, Plaintiff said he had felt more relaxed and had better controlled his words since his divorce had been finalized and he had received notification of acceptance for inpatient treatment. Tr. at 606. He denied improved functioning on Buspar, but stated his girlfriend said she could tell if he failed to take it. Id. He said he was looking forward to beginning the inpatient PTSD program because he continued to be irritable and speak down to his girlfriend. Id. Dr. Jachna noted Plaintiff was less dysphoric on MSE. Tr. at 607. Plaintiff was tolerating Buspar with partial benefit, and Dr. Jachna increased the dose to 15 mg twice daily. Id.
Plaintiff was admitted to the Specialized Inpatient PTSD Unit at Salisbury Veterans Affairs Medical Center (“VAMC”) from February 21 to March 31, 2017, for treatment of PTSD and IED. Tr. at 327-30, 333-574, 693-98. He reported increased difficulty controlling his anger over the prior year and indicated he felt defensive, aggressive, and verbally abusive. Tr. at 568. He said he lived in a small town where everyone was aware of his status as a combat veteran and overlooked his aggressive behavior that had included numerous physical altercations. Id. He reported he had planned a homicidal attack on his former coworkers. Tr. at 552. He endorsed a history of four suicide attempts between 2003 and 2007. Tr. at 345. He denied current thoughts of self-harm, but admitted to occasional thoughts of hurting others. Tr. at 563. Plaintiff participated in psychotherapy, medication management, trauma processing group, exposure therapy, cognitive processing therapy, and team building. Tr. at 690-91. He was discharged with prescriptions for Aripiprazole 15 mg, Cetirizine HCl 10 mg, Hydroxyzine Pamoate 50 mg, and Prazosin HCl 2 mg. Tr. at 663.
Plaintiff presented to Georgia Huff, M.D. (“Dr. Huff”), for a compensation and pension (“C&P”) exam on April 3, 2017. Tr. at 744-51. She noted her conclusions were based on review of Plaintiff's Veterans Affairs (“VA”) claims file and electronic folder and a clinical interview. Tr. at 601. She recognized that Plaintiff had received multiple honors during his service and had received a diagnosis of PTSD. Tr. at 599-600. Plaintiff described having engaged in heavy combat in Iraq, where he experienced threats from incoming mortar and rocket fire, small arms, convoy ambushes, and suicide bombers and had witnessed injuries and deaths of his fellow Marines, as well as civilians. Id. He reported having experienced nightmares, flashbacks, panic attacks, irritability, paranoia, intolerance of loud noises and crowds, intrusive thoughts, anxiety, depression, anger, and emotional disconnection. Tr. at 601. He indicated his symptoms were sometimes triggered and escalated by environmental factors that reminded him of war. Id. He endorsed hearing voices at times and indicated he used medication to control this and other symptoms. Id. He reported he had been unable to sustain a job due to his anger, irritability, and paranoid thoughts. Id. He admitted he had lashed out at coworkers in the past and had planned to significantly injure a former coworker. Id.
Dr. Huff found that Plaintiff had exposure to actual or threatened death or serious injury, presence of intrusion symptoms, and engaged in persistent avoidance of stimuli associated with the traumatic events. Tr. at 602-03. She considered Plaintiff to have negative alterations in cognitions and mood associated with traumatic events, as evidenced by: persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself or others; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and persistent inability to experience positive emotions. Tr. at 603. She found Plaintiff had irritable behavior and angry outbursts, with little or no provocation, that were typically expressed as verbal or physical aggression toward people or objects; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. Tr. at 603-04. She noted Plaintiff was oriented to time, place, person, and situation; maintained good eye contact; was somewhat guarded in behavior; demonstrated psychomotor agitation; had normal speech; and showed depressed mood and congruent affect. Tr. at 604.
Dr. Huff described Plaintiff's symptoms as including depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; obsessional rituals that interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, persistent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. Id.
On April 5, 2017, social worker Sara D. Kennedy contacted Plaintiff by telephone to follow up from his recent hospitalization. Tr. at 331. Plaintiff reported that he had taken a camping trip with his girlfriend that “went very well.” Id. He continued to endorse disrupted sleep, but noted he was better able to get back to sleep after he woke. Id. He indicated he was pleased with his ability to manage stressors and denied having any angry outbursts. Id. He stated he was on his way to a hockey game and was “going to try” attending the large event. Id.
Plaintiff visited NP Mega for primary care reevaluation on May 4, 2017. Tr. at 728. He reported doing well since his last visit. Id. NP Mega refilled Plaintiff's medications. Tr. at 729.
On May 16, 2017, Plaintiff reported he was no longer taking Buspar. Tr. at 723. He endorsed benefit from the Salisbury inpatient program. Id. He complained of worsening agitation after being off Apiprazole for a week. Id. He reported the initial 30 mg dose had caused him to feel anxious and restless, leading his doctor to reduce it to 15 mg, but he had subsequently increased his dose to 30 mg on his own, after the 15 mg dose became less effective. Id. He denied having noticed the initial side effects upon increasing the dose, but said it made him feel drowsy so he was taking it at night. Id. Plaintiff indicated he was better able to control his explosive reactions and was experiencing fewer nightmares that were not military-related. Id. Dr. Jachna noted normal findings on MSE, including euthymic mood. Tr. at 724. He refilled Aripiprazole, Hydroxyzine, Prazosin, and Trazodone. Tr. at 724- 25.
On May 30, 2017, Angela V. McCann, MSW, LCSW-C (“SW McCann”), and Michael G. Fitzsimmons, M.Ed., NCC, LPP (“Counselor Fitzsimmons”), provided a clinical summary of Plaintiff's counseling services since November 2009. Tr. at 792-93.
State agency medical consultant Kimberley Patton, M.D., reviewed the record and assessed Plaintiff's physical impairments as non-severe on June 12, 2017. Tr. at 63-64.
On June 21, 2017, state agency consultant Rebekah Jackson, Ph.D. (“Dr. Jackson”), reviewed the record and considered Listings 12.08 for personality and impulse-control disorders and 12.15 for trauma and stressor-related disorders, assessing a mild degree of impairment in understanding, remembering, or applying information and adapting or managing oneself and a moderate degree of impairment in interacting with others and concentrating, persisting, or maintaining pace. Tr. at 64-65. Dr. Jackson provided a mental residual functional capacity (“RFC”) assessment, finding Plaintiff to be moderately limited with respect to the following abilities: to carry out detailed instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically-based symptoms; to perform at a consistent pace without an unreasonable number and length of rest periods; and to interact appropriately with the general public. Tr. at 66-68. She considered Plaintiff to be able to “understand and remember both simple and complex task instructions, ” “attend to and perform simple, unskilled tasks for reasonable periods of time without special supervision, ” “attend work regularly, ” “interact appropriately with coworkers and supervisors, ” “adjust to change in a normal work environment, make work-related decisions, recognize and avoid work-related safety hazards, and travel to/from work independently.” Id. She noted Plaintiff would need to “miss no more than an occasional day of work due to mental illness” and was “not suited for work with the general public.” Id.
On September 18, 2017, Plaintiff continued to endorse benefits from inpatient treatment and indicated he was responding well to Aripiprazole, Hydroxyzine, Prazosin, and Trazodone. Tr. at 816. Although he reported improved symptoms overall, Plaintiff complained of increased depression that lasted for up to two-to-three days at a time and insomnia with some nightmares. Tr. at 816-17. He indicated he was continuing to participate in services through the Vet Center and counseling with Dr. Wentworth and planned to volunteer for a veterans' hospice program. Tr. at 818. Dr. Jachna noted normal findings on MSE. Tr. at 817. He continued Plaintiff's medications. Tr. at 818.
On November 28, 2017, a second state agency consultant, Larry Clanton, Ph.D. (“Dr. Clanton”), reviewed the record, considered Listings 12.08 and 12.15, and affirmed Dr. Jackson's opinion as to the degree of limitation imposed, Plaintiff's mental RFC, and his abilities. Compare Tr. at 79-83, with Tr. at 64-68.
Also on November 28, 2017, state agency medical consultant Donna Stroud, M.D., assessed Plaintiff's physical impairments as non-severe. Tr. at 78.
Plaintiff complained of recurrent migraine headaches on December 5, 2017. Tr. at 954. NP Mega renewed Plaintiff's medications and added Imitrex 50 mg for migraines. Tr. at 955.
On February 13, 2018, Plaintiff reported improved symptoms overall with brief periods of depression. Tr. at 947. He indicated he had slept better after accidentally skipping a dose of Trazodone several months prior and had subsequently discontinued the medication on his own. Tr. at 948. He noted he was getting out more often and volunteering to combat isolation and depression. Id. Dr. Jachna noted normal findings on MSE. Tr. at 948-49. He stated Plaintiff was no longer attending psychotherapy with Dr. Wentworth, as she had closed her practice, but continued to attend therapy with SW McCann. Tr. at 949. He discontinued Trazodone and refilled Plaintiff's other medications. Id.
Plaintiff presented to Allysa Zoucha, Pharm.D. (“Dr. Zoucha”), for interim medication management on May 1, 2018. Tr. at 940. He complained of increased anger, agitation, and irritability over the prior two weeks, but identified no particular trigger. Id. He reported anger with his 16-year-old stepson and his service dog. Id. He said he had an urge to kick the dog, but had not done so. Id. He denied recent outbursts and said he had learned to manage his behavior in the inpatient treatment program. Tr. at 940-41. He stated he had married on March 18 and was attempting to visit all 47 state parks with his wife. Tr. at 941. Dr. Zoucha observed Plaintiff to demonstrate a “grumpy” mood, somewhat restricted affect, and some leg-tapping. Tr. at 942. She discussed the case with the psychiatrist and initiated Divalproex 500 mg. Tr. at 943.
X-rays of Plaintiff's left foot showed no abnormalities on May 29, 2018. Tr. at 961.
Plaintiff reported no complaints on June 13, 2018. Tr. at 934. A depression screening was negative. Tr. at 938. Dr. Mega refilled Tylenol #3. Tr. at 936.
Plaintiff was hospitalized at the Medical University of South Carolina (“MUSC”) from July 18 through July 30, 2018, for pneumonia and acute respiratory distress syndrome that required use of a ventilator. Tr. at 842, 916. He suffered from acute renal failure and deep venous thrombosis in his left lower extremity. Tr. at 916, 924.
Plaintiff continued to report benefits from his medications on August 14, 2018. Tr. at 918. He complained of depression, anxiety, insomnia, and lingering symptoms from his recent bout with pneumonia and indicated he found himself “not caring as much.” Id. Dr. Jachna observed Plaintiff's mood to be mildly dysphoric and his affect to be restricted. Tr. at 919. He continued Plaintiff's medications. Tr. at 920. He noted Plaintiff's treatment at the Vet Center with SW McCann had concluded. Id.
Plaintiff also participated in anticoagulation therapy on August 14, 2018. Tr. at 923-28.
On August 15, 2018, Plaintiff reported weakness and continued swelling in his left hand and lower extremities. Tr. at 916. NP Mega referred Plaintiff to physical therapy to work on strengthening exercises. Id.
Plaintiff engaged in physical therapy from August 29, 2018 until September 13, 2018, when he was released to a home exercise program. Tr. at 902-04, 908-13.
Plaintiff returned for anticoagulation therapy on September 11, 2018. Tr. at 904-08.
Plaintiff presented to podiatrist Smithna Joseph-Parambathu, D.P.M. (“Dr. Joseph-Parambathu”), for evaluation of pain on the outer side of his left foot on October 18, 2018. Tr. at 889. He indicated he had sprained the area in the past. Id. Dr. Joseph-Parambathu assessed pes cavus and supination deformity and recommended orthotic insoles and shoes. Id.
Plaintiff followed up for anticoagulation therapy on November 21, 2018. Tr. at 886-88.
Plaintiff complained of irritability on November 26, 2018. Tr. at 879. He admitted he had tried to take his medications at different times and stopped using Hydroxyzine, but noted he had resumed taking all his medications at the prescribed times. Id. He endorsed anger issues, insomnia, and nightmares. Id. Dr. Jachna observed Plaintiff to be mildly dysphoric, to have “a bit less restricted affect, ” and to otherwise demonstrate normal presentation on MSE. Tr. at 880. He assessed PTSD, IED, and personality disorder. Id. He continued Plaintiff's other medications and instructed him to raise Prazosin by 5 mg by increasing his dose by 1 mg each day over the course of five days. Tr. at 881.
Plaintiff participated in anticoagulation therapy on December 7, 2018. Tr at 870-72. He was discharged from the clinic and referred back to his primary care physician for anticoagulation monitoring. Tr. at 872.
On December 12, 2018, Plaintiff indicated his pain was fairly controlled with Tylenol #3. Tr. at 864. NP Mega noted Plaintiff was to use Lasix as needed. Id. He prescribed Ecasa 325 mg and Lipitor 40 mg and refilled Tylenol #3, Zantac, and Imitrex. Tr. at 865.
Plaintiff expressed concern over his irritability on February 4, 2019. Tr. at 850. His responses on a PTSD screen suggested very severe symptoms and his responses on a depression screen were consistent with severe depression. Tr. at 846-49. He endorsed no benefit from the increased dose of Prazosin. Tr. at 850. He reported insomnia, some nightmares, and periods of depression, but felt his mood had been better over time. Id. He described sleeping for only four hours, as he had difficulty falling asleep. Id. Dr. Jachna observed mildly dysphoric mood, less restricted affect, and otherwise normal findings on MSE. Tr. at 851. He increased Divalproex to 750 mg and refilled Plaintiff's other medications. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified he lived in a mobile home with his wife and her 18-year old son. Tr. at 36. He said his wife worked as a part-time farmhand. Id. He reported having two dogs, a snake, and a cat. Id. He stated he had a driver's license and last worked for the postal service, first as an information clerk, then as a general expeditor. Tr. at 36-37. He said he briefly worked for USA Truck as a dispatcher, monitoring truck drivers to make sure they arrived at their destinations on time. Tr. at 37-38. He reported serving as an E5 sergeant in the Marine infantry for four years, prior to serving as a primary march troop instructor at Parris Island, where he provided shooting instruction to recruits during basic training. Tr. at 38.
Plaintiff testified that his anger, panic attacks, and inability to communicate with others effectively prevented him from working. Tr. At 39. He said he quit his job at the postal service after “a run-in.” Tr. at 39-40. He said he had been diagnosed with PTSD with major depressive disorder, anxiety, and IED. Tr. at 40. He said he had never had legal problems because he had always been able to sweet talk his way out of trouble. Id. He admitted he was briefly incarcerated for failure to pay child support. Id.
Plaintiff testified he isolated a lot, did not go out much, and quickly went in and out of those places he visited. Tr. at 41. He said he did not communicate with people because he tended to consider their actions to be disrespectful, leading to uncontrolled anger. Id. He said he attended therapy every two weeks with a VA therapist in Anderson. Id. He said the VA controlled all his treatment. Id. He said the VA sent him to a hockey game once, but he became overwhelmed by the loud noise and crowd and had to leave after 45 minutes to an hour. Tr. at 41-42. He said he volunteered with his wife as a maintenance worker at the Humane Society once a week for two months, but did not like it. Tr. at 42. He denied problems performing the job, noting the supervisor told him what to do and left him alone, but stated he stopped volunteering there to save his marriage, as his wife's desire to adopt every dog she saw led to arguments. Id.
Plaintiff said the VA had him try exposure therapy by going out in public for 45 minutes at a time, like in a bank, as opposed to the drive-through, but it never worked. Id. He said he could shop and go to the bank, but he would be in and out briefly. Tr. at 43. He said he never went to the store by himself, but would occasionally drive. Id. He noted he had been working on his road rage, recounting that someone had cut him off the last time he tried to drive and he wanted to jerk him out of his car, but his wife tugged on his shirt and urged him to act more reasonably. Id. He said it helped to have his wife or someone with him all the time. Id. He reported difficulty sleeping, saying he slept for three hours, was awake for two or three hours, and slept for another two or three hours during the night. Tr. at 44. He admitted he would periodically doze for 10 to 20 minutes at a time throughout the day, while watching television. Id.
Plaintiff testified he had random panic attacks without triggers. Id. He described feeling as if his heart were caving in and noted the feeling was accompanied by dizziness, difficulty breathing, and sweaty hands. Id. He said he used breathing techniques he had learned while in inpatient treatment, but they sometimes did not help. Id. He reported two inpatient hospitalizations, most recently in March 2017. Tr. at 44-45. He said he no longer drank or used marijuana, last using in January or February 2017. Tr. at 45.
Plaintiff described spending his days watching television and checking the mail at 2:00 PM. Id. He said watching television kept him out of trouble. Id. He stated his depression and lack of motivation prevented him from helping out around the house. Tr. at 45-46. He stated that although he watched television all day, he could not concentrate on the programs, as he often started thinking of something else. Tr. at 46. He said he sometimes thought of his friends who died in Iraq and had difficulty thinking of anything else for the rest of the day. Tr. at 46. He said he had to be careful about the types of television programs he watched and the songs he listened to on the radio because they could trigger his symptoms. Id. He said he belonged to the Freemasons that met once a month and to a Bible study that met on Saturdays, but he had not attended many meetings recently because he was isolating more often. Tr. at 46-47. He denied having trouble attending the Masonic meetings because the other members had served in the military and provided a good support group. Tr. at 47.
Plaintiff reported his medications caused him to experience dizziness, drowsiness, and frequent bowel movements that occurred four to five times a day. Id. He said he did not like dealing with crowds or people, but did not know that he could work in a job that was isolated because the postal expeditor job was pretty isolated and he did not get along too well with his supervisors. Tr. at 47-48.
Plaintiff said he was still on anticoagulant therapy and was restricted from doing things that might cause bruising or bleeding. Tr. at 49. He stated he had been given strict orders that if he bumped his head or was otherwise injured that he needed to go to the emergency room immediately. Id. He said he did not think his medication restricted his ability to perform exertional activities, but thought his heart condition did, reporting that walking to the mailbox and back caused him to breathe heavily. Tr. at 49-50.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Allison Shipp reviewed the record and testified at the hearing. Tr. at 50-57. The VE categorized Plaintiff's PRW as (1) a trucking dispatcher as sedentary, skilled, specific vocational preparation (“SVP”) of 5, Dictionary of Occupational Titles (“DOT”) number 249.167-014; (2) a mail handler as light, semi-skilled, SVP of 4, DOT number 209.687-014; (3) a material expediter as medium, semi-skilled, SVP of 4, DOT number 221.367-042; (4) an infantry weapons crew member as very heavy, semiskilled, SVP of 3, DOT number 378.684-026; and (5) a marksmanship instructor as medium, semi-skilled, SVP of 4, DOT number 378.227-010. Tr. at 51-53.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform medium work in two-hour increments with normal and acceptable work breaks over the course of an eight-hour day; occasionally climb ladders, ropes, and scaffolds; frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights; concentrate, persist, and maintain pace to understand, remember, and carry out unskilled routine tasks in a low stress work environment free of fast-paced or team-dependent production requirements, involving the application of understanding to carry out instructions in written, oral, or diagrammatic form; do problems involving several concrete variables and standardized situations; adapt to occasional workplace changes; perform jobs largely isolated from the general public, dealing with data and things rather than people; perform jobs where the work duties can be completed independently from coworkers, but physical isolation is not required; respond appropriately to reasonable and customary supervision; and not be openly exposed to alcoholic substances, such as work in a bar, winery, a brewery, or alcohol distribution warehouse, or openly exposed to controlled substances or prescription medication, such as work in a law enforcement evidence facility, a forensic lab, pharmaceutical manufacturing plant, medical facility, or pharmacy. Tr. at 53-54. The VE testified the hypothetical individual would not be able to perform Plaintiff's PRW. Tr. at 54. The ALJ asked whether there were any other jobs in the economy that the hypothetical person could perform. Id. The VE identified the following medium, unskilled positions, with an SVP of 2: (1) a hand packager, DOT 920.587-018; (2) a warehouse worker, DOT number 922.687-058; and (3) a laundry worker, DOT number 361.685-018, with 163, 000, 100, 000, and 445, 000 positions available in the national economy, respectively. Id.
The ALJ described a second hypothetical that modified the first hypothetical to note the individual could work in proximity to others as long as there was no interaction needed and would perform best in more solitary work tasks, but would not be dependent upon any others or working in tandem for the tasks. Tr. at 54-55. The VE testified the same jobs previously described would be available.
The ALJ described a third hypothetical that modified the second hypothetical to provide the individual would perform best on more solitary work tasks. Tr. at 55-56. The VE testified no jobs would be available. Tr. at 56.
In response to questioning by Plaintiff's counsel, the VE clarified that if the person in any of the hypotheticals were unable to handle reasonable constructive supervision, no jobs would be available. Tr. at 56-57.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since July 1, 2016, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: anticoagulant therapy secondary to deep vein thrombosis, obesity, affective disorder, anxiety disorder, posttraumatic stress disorder (PTSD), and personality disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except he can occasionally climb ladders, ropes, and scaffolds; frequently climb ramps and stairs; frequently balance, stoop, kneel, crouch, and crawl; and have occasional exposure to hazards associated with unprotected dangerous machinery or unprotected heights. He can concentrate, persist, and maintain pace to understand, remember, and carry out unskilled, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements) involving the application of commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. He can deal with problems involving several concrete variables in or from standardized situations. He can adapt to occasional work place changes. He can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. He can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to reasonable and customary supervision. He should not be openly exposed to accessible alcoholic substances (such as work in a bar, winery, brewery, or alcohol distribution warehouse). He should not be openly exposed to controlled substances or prescription medications (such as work in a law enforcement evidence facility, forensic lab, pharmaceutical manufacturing plant, medical facility or pharmacy).
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on June 1, 1981 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 1, 2016, through the date of this decision (20 CFR 404.1520(g)).Tr. at 16-26.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to properly evaluate the medical opinions of record; and
2) the ALJ did not reconcile all evidence and adequately explain the RFC assessment.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3). alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardso n, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Medical Opinions
Plaintiff argues the ALJ improperly evaluated multiple medical opinions that supported greater limitations than he found. [ECF No. 11 at 21]. He maintains the ALJ did not consider that Plaintiff's providers offered consistent opinions. [ECF No. 13 at 3-4].
The Commissioner argues that because Plaintiff's claim was filed after March 27, 2017, the rules in 20 C.F.R. § 404.1520c, as opposed to those in 20 C.F.R. § 404.1527, apply. [ECF No. 12 at 10]. He maintains that the ALJ complied with the applicable regulations in evaluating statements from Dr. Wentworth, SW McCann, Counselor Fitzsimmons, and Dr. Huff. Id. at 12, 16.
The date on which a claim was filed dictates which regulations apply to consideration of the medical opinions of record. See 20 C.F.R. §§ 404.1513, 404.1520c. Medical opinions are defined under 20 C.F.R. § 404.1527(a) for cases filed prior to March 27, 2017, and under 20 C.F.R. § 404.1513(a)(2) for claims filed on or after that date. See 20 C.F.R. § 404.1513(a)(2). The rules for evaluating medical opinions in 20 C.F.R. § 404.1527 apply to cases filed prior to March 27, 2017, and the rules in 20 C.F.R. § 404.1520c apply to those filed on and after that date. Id. Because Plaintiff's claim was filed after March 27, 2017, the undersigned has considered the medical opinions in accordance with 20 C.F.R. §§ 404.1513(a)(2) and 404.1520c.
Pursuant to 20 C.F.R. § 404.1513(a)(2):
A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities:
(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.
Under the applicable rules for evaluating medical opinions, the ALJ is not to defer to or give any specific weight to medical opinions based on their source. 20 C.F.R. § 404.1520c(a). The ALJ should consider and articulate in his decision how persuasive he found all of the medical opinions based on the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that that tend to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(b), (c). However, supportability and consistency are the most important of the factors. 20 C.F.R. § 404.1520c(a), (b)(2). In evaluating the supportability of a medical opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinion . . . will be.” 20 C.F.R. § 404.1520c(c)(1). In assessing the consistency factor, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2). The ALJ is required to explain how he considered the supportability and consistency factors in evaluating a medical opinion and may, but is not required to, explain how he considered the other three relevant factors. 20 C.F.R. § 404.1520c(b)(2).
The regulation notes five issues relevant to consideration of the relationship between the medical source and the claimant, including the length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship, and examining relationship. 20 C.F.R. § 404.1520c(c)(3).
Given the foregoing authority, the undersigned considers Plaintiff's specific allegations.
a. Statements from Dr. Wentworth and SW McCann and Counselor Fitzsimmons
Dr. Wentworth provided an opinion on December 6, 2016, in which she indicated she had provided psychotherapy to Plaintiff since February 2016. Tr. at 827. She noted she had observed a steady decline in Plaintiff's mental and emotional functioning. Id. She stated Plaintiff had suffered from PTSD and depression for several years and had previously attempted suicide on four occasions. Id. She opined that Plaintiff's emotional and mental decline were related to his impending divorce, his children's negative communication and unwillingness to see him, his loss of employment, and an inability to pay for housing, transportation, and child support. Id. She described Plaintiff as usually sleep-deprived due to nightmares. Id. She explained that Plaintiff had lost most of his friends because of his decision to leave his wife, after he had an affair with a coworker. Id. She noted that Plaintiff had little support because the rest of his family lived in California. Id. She stated Plaintiff often lacked his medications because he had difficulty getting into the VA for medication management visits. Id. She opined that Plaintiff was unable to work due to a heightened state of agitation, anger, and depression. Id. She stated Plaintiff feared he may harm someone if he returned to work and had sold his guns for that reason. Id. She noted Plaintiff's PTSD symptoms had increased and he had continued to exercise poor judgment after he engaged in the affair. Id. Dr. Wentworth opined that, after four unsuccessful suicide attempts, Plaintiff had decided to exact extreme punishment on himself by destroying his job, family, and friendships. Id. She indicated Plaintiff had found a way to destroy his life that did not require physical death. Id. She stated Plaintiff needed weekly outpatient or inpatient treatment to address childhood trauma, combat experience, and IED. Id.
Dr. Wentworth provided a second opinion on May 23, 2017. Tr. at 826. She explained that Plaintiff had sustained serious psychological trauma during his childhood and adolescence and as a Marine in combat that resulted in difficulties with anger and rage, impulsive actions, anxiety, depression, and relationship conflict. Id. She stated Plaintiff suffered from PTSD and IED. Id. She indicated Plaintiff's inability to control explosive behaviors, even while on medication, would cause him extreme distress in an employment situation. Id. She noted Plaintiff was compliant with treatment and had participated in an inpatient treatment program, which was helpful, but did not substantially resolve his problems. Id. She indicated Plaintiff's PTSD and IED were unlikely to remit in the near future. Id. Nevertheless she noted that she had placed no restrictions on Plaintiff's activities. Id.
SW McCann and Counselor Fitzsimmons provided a statement on Plaintiff's behalf on May 30, 2017. Tr. at 792-93. They noted Plaintiff had participated in readjustment services related to his deployment experiences through the Vet Center since November 2009. Tr. at 792. They described Plaintiff's symptoms as including angry outbursts, psycho-traumatic stress, diminished interest in significant activities, and isolationism. Id. They stated Plaintiff had lost friends and a sense of closeness with nearly all his family members. Id. They indicated Plaintiff also experienced sleep disturbance, problems with concentration, avoidance, loss of control, and inability to control his temper. Id. They noted Plaintiff had depressive symptoms that included occasional crying spells, difficulty sleeping, erratic appetite, and occasional suicidal ideation with an attempt in 2004. Id. They stated Plaintiff had endorsed homicidal ideation in the past, but denied attempts or gestures. Id. They indicated Plaintiff had present suicidal ideation, but denied homicidal ideation and had no suicide plan. Id.
SW McCann and Counselor Fitzsimmons explained that Plaintiff had been placed in constant life-threatening situations while stationed in Iraq and had witnessed deaths and injuries of fellow soldiers, including the deaths of two of his friends. Id. They stated Plaintiff's experience had led to PTSD, which had changed his social and familial interactions. Id. They noted Plaintiff's symptoms had intensified over the prior few years, causing him to feel angry and lash out. Id. They considered Plaintiff's ability to function normally to be severely and permanently impaired due to PTSD. Id. They stated Plaintiff would continue to require individual and group therapy and medication. Tr. at 793.
Plaintiff argues the ALJ provided invalid reasons for rejecting Dr. Wentworth's and SW McCann's and Counselor Fitzsimmons's opinions. [ECF No. 11 at 29-31]. He claims Dr. Wentworth's failure to place restrictions on his activities did not contradict her opinion that he would find an employment situation too stressful. Id. at 29. He maintains the regulations do not require that medical providers impose function-by-function restrictions. Id. He contends the ALJ erroneously rejected the opinions based on brief periods of improvement that were the exceptions to his general functioning. Id. at 30. He claims the opinions were no less credible because they were rendered in support of disability applications. Id.
The Commissioner argues the statements from Dr. Wentworth and SW McCann and Counselor Fitzsimmons were not medical opinions pursuant to the applicable regulations, as they did not give “function-by-function assessment[s] of the claimant's abilities and limitations.” [ECF No. 12 at 13]. Nevertheless, he maintains the ALJ evaluated the opinions based on the relevant factors, noting inconsistency with evidence of improvement following inpatient treatment and indicating the opinions were not supported by the longitudinal evidence of record. Id.
The ALJ found Dr. Wentworth's and SW McCann's and Counselor Fitzsimmons's opinions to be “unpersuasive.” Tr. at 22. He noted that Dr. Wentworth stated Plaintiff found it “extremely distressing to be in an employment situation, ” but placed no restrictions on his activities. Id. He stated Dr. Wentworth and SW McCann and Counselor Fitzsimmons declined to provide function-by-function assessments of Plaintiff's abilities and limitations. Id. He noted there was “evidence of significant improvement following the claimant's impatient treatment” and the level of severity the providers endorsed was “not supported by the longitudinal evidence of record (Exhibits 2F, 9F).” Id. He found the opinions “appear[ed] to have been generated in support of the claimant's disability retirement application with the United States Postal Service and/or his application for an increase in VA disability benefits (Exhibit 5F/2, 8F/1, 3).” Id.
Plaintiff challenges the ALJ's rejection of opinions from Dr. Wentworth and SW McCann and Counselor Fitzsimmons as impermissibly imposing a requirement for a function-by-function assessment. He points to the court's decision in Putnam v. Saul, C/A No. 2:18-3524-DCN-MGB, 2020 WL 562960, at *5 (D.S.C. Feb. 5, 2020), rejecting a requirement for function-by-function analysis in medical opinions, as a requirement for function-by-function analysis is one imposed upon ALJs in determining a claimant's RFC. Although the court provided in Putna m that the absence of a function-by-function analysis was “not a means by which an ALJ can discredit the opinion of a treating physician, ” it did so in the context of a case that defined medical opinions under the regulations applicable to cases filed prior to March 27, 2017. See id., at *4 (providing “[m]edical opinions are ‘statements from acceptable medical sources that reflect judgments about the nature and severity of [ ] impairment(s), including [ ] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [ ] physical or mental restrictions'” (citing 20 C.F.R. § 404.1527(a)(1))).
On the other hand, 20 C.F.R. § 404.1513(a)(2) defines a medical opinion as a statement from a medical source about what the claimant can still do despite his impairments and whether he has one or more impairment-related limitations or restrictions in his ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting. Thus, the definition of what serves as a medical opinion is much more narrowly-tailored under the regulations applicable to this case, requiring a statement of the functions a claimant can perform and those that are limited or restricted and not crediting a medical source's description of symptoms, diagnosis, and prognosis as medical opinion. Compare 20 C.F.R. § 404.1513(a)(2), with 20 C.F.R. § 404.1527(a)(1).
One of the ALJ's reasons for finding Dr. Wentworth's and SW McCann's and Counselor Fitzsimmons's opinions unpersuasive was their failure to “give a function-by-function assessment of the claimant's abilities and limitations.” Tr. at 22. While the ALJ's use of the term “function-by-function” is similar to that rejected in Putnam, the fact remains that the applicable definition of a medical opinion requires an assessment of the claimant's abilities and limitations. Dr. Wentworth and SW McCann and Counselor Fitzsimmons provided statements detailing Plaintiff's treatment history and symptoms, diagnosis, and prognosis, but they did not set forth his abilities or specify limitations to his ability to perform mental demands of work activities, as required by 20 C.F.R. § 404.1513(a)(2). See Tr. at 792-93, 826, 827. As the ALJ acknowledged, Dr. Wentworth opined that Plaintiff was unable to work, but explicitly declined to impose specific limitations on his activity. See Tr. at 22 (referencing Tr. at 826). The fact that the medical providers' statements did not meet the statutory definition of medical opinions serves as valid reason for the ALJ to find them unpersuasive.
Despite having determined Dr. Wentworth's, SW McCann's, and Counselor Fitzsimmons's opinions lacked the essential criteria to serve as medical opinions, the ALJ still analyzed them in accordance with 20 C.F.R. § 404.1520c. Pursuant to 20 C.F.R. § 404.1520c(a), supportability and consistency are the most important factors an ALJ is to consider in evaluating the persuasiveness of a medical opinion. Contrary to Plaintiff's assertion, the ALJ considered the consistency of Dr. Wentworth's statements with SW McCann's and Counselor's Fitzsimmons's statement, noting Dr. Wentworth stated Plaintiff found “it extremely distressing to be in an employment situation” and SW McCann and Counselor Wentworth similarly considered his “overall ability to function normally” to be “‘severely and permanently impaired due to PTSD.'” Tr. at 22. Although the ALJ did not specifically analyze the supportability of SW McCann's and Counselor Fitzsimmons's statement, such analysis would have been impossible, as they provided no treatment records. Elsewhere in the decision, the ALJ discussed Plaintiff's treatment with Dr. Wentworth, acknowledging that it showed Plaintiff to have significant limitations prior to his inpatient hospitalization for PTSD. See Tr. at 20-21 (discussing Dr. Wentworth's October and December 2016 and February 2017 treatment records). However, the record contains no treatment notes from Dr. Wentworth following Plaintiff's hospitalization from which the ALJ could have assessed whether the restrictions in the statements continued to be supported.
The ALJ properly relied on subsequent evidence that showed “significant improvement following . . . inpatient treatment” such that the level of severity Dr. Wentworth and SW McCann and Counselor Fitzsimmons endorsed was “not supported by the longitudinal evidence of record.” He cited Plaintiff's report of improved mood following discharge. Tr. at 21. He recognized Plaintiff's endorsement of brief periods of depression in September 2017, but noted Plaintiff's report that most of his symptoms were still improved. Id. He referenced Plaintiff's May 2018 mental status report that was generally normal and his report of doing well, having fewer nightmares that were not military-related, no longer having auditory or visual hallucinations, having recently married, and planning to visit all 47 state parks. Id. He noted the evidence reflected “very few visits for mental health treatment” after March 2017. Id.
The undersigned recognizes that Plaintiff reported increased symptoms during some treatment visits after March 2017. See Tr. at 816-17, 877-79, 940, 947. Nevertheless, the ALJ did not mischaracterize the record, as it showed that Plaintiff only followed up for mental health treatment on six occasions between March 2017 and February 2019 and consistently reported that his symptoms had improved such that he was better able to control his emotions and no longer endorsed homicidal ideation. See Tr. at 331, 723-34, 816-17, 918, 940-41, 947.
The undersigned agrees with Plaintiff that whether Dr. Wentworth and SW McCann and Counselor Fitzsimmons rendered their opinions for the purpose of helping him to secure disability benefits through his former employer or the VA was irrelevant to evaluation of their opinions. Thus, the undersigned does not consider the ALJ's reference to the reasons the providers rendered their opinions to be substantial evidence supporting his finding that the opinions were unpersuasive. Nevertheless, to the extent the ALJ erred in citing this evidence, such error was harmless, as he considered the valid factors under 20 C.F.R. § 404.1520c and cited substantial evidence based on those factors to support his conclusion. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (providing an ALJ's error is generally considered to be harmless where he “conducted the proper analysis in a comprehensive fashion, ” “cited substantial evidence to support his finding, ” and would have unquestionably “reached the same results notwithstanding his initial error”).
Given the foregoing, the undersigned recommends the court find that substantial evidence supports the ALJ's evaluation of the statements from Dr. Wentworth, SW McCann, and Counselor Fitzsimmons.
b. Dr. Huff's Report
Dr. Huff stated Plaintiff's mental diagnoses caused “total occupational and social impairment.” Tr. at 601. She noted Plaintiff had “vivid nightmares, panic attacks, flashbacks, anxiety, depressed mood, paranoia, hallucinations, isolates, cannot tolerate crowds, or loud sudden noises, has irritability, anger.” Tr. at 605. She considered Plaintiff to be capable of managing his own financial affairs. Id.
Plaintiff argues the ALJ improperly rejected Dr. Huff's opinion for lacking a function-by-function assessment. [ECF No. 11 at 29, 31]. He maintains that, although the regulations require ALJs to perform function-by-function analyses, no such requirement applies to medical opinions. Id.
The Commissioner argues Dr. Huff's statement did not qualify as a medical opinion under the regulatory definition. [ECF No. 12 at 16]. He maintains the ALJ still considered the opinion in combination with the longitudinal record. Id.
The ALJ found Dr. Huff did not “render any express opinion regarding the claimant's functional abilities, but restated Plaintiff's reports.” Tr. at 23. He noted Dr. Huff's conclusion that Plaintiff's “symptoms are at least likely as not due to the horrific combat experience he endured in the Iraq War.'” Id. He indicated he had considered Dr. Huff's report along with the other evidence of record. Id.
As the undersigned explained above, for an opinion to be considered a medical opinion pursuant to 20 C.F.R. § 404.1513(a)(2), it requires a statement of the functions a claimant can perform and those that are limited or restricted. The ALJ properly considered Dr. Huff's opinion given that she did not state the functions Plaintiff could perform and those that were limited or restricted. He noted that he considered Dr. Huff's report as part of the record, but cited reasons elsewhere in the decision for concluding that Plaintiff's impairments did not preclude all work. Therefore, the undersigned recommends the court find that substantial evidence supports the ALJ's consideration of Dr. Huff's report.
2. RFC Assessment
Plaintiff argues the ALJ did not reconcile the finding that he could perform “unskilled, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements) involving the application of commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form” and “deal with problems involving several concrete variables in or from standardized situations” with his allocation of great weight to the state agency consultants' opinions that he would be limited to “simple, unskilled tasks.” [ECF No. 11 at 32-34]. He maintains the ALJ found he could perform “essentially jobs with a [General Educational Development (“GED”)] reasoning level of 3, ” despite the consultants' restriction to unskilled work. Id. at 34.
The Commissioner argues the RFC assessment does not require remand. [ECF No. 12 at 16]. He maintains the ALJ limited Plaintiff to “unskilled, routine tasks, ” which was consistent with Drs. Jackson's and Clanton's assessments for “unskilled tasks.” Id. at 17. He further maintains the VE identified and the ALJ relied on Plaintiff's ability to perform an unskilled job with a GED reasoning level of two. Id.
The ALJ must consider all the relevant evidence and account for all of the claimant's medically-determinable impairments in assessing his RFC. See 20 C.F.R. § 404.1545(a). He must determine the claimant's ability to perform work-related physical and mental functions on a regular and continuing basis and must include a narrative discussion describing how all the relevant evidence supports each conclusion and must cite “specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184 at *2, 7 (1996). The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. SSR 16-3p, 2016 WL 1119029, at *7. “[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). “[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
Plaintiff correctly argues that a distinction may be drawn between an RFC for “simple, unskilled tasks” and one involving “unskilled, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements) involving the application of commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form” requiring the individual “deal with problems involving several concrete variables in or from standardized situations.” The DOT specifies that jobs with a GED reasoning level of two require workers to “[a]pply commonsense understanding to carry out simple one- or two step instructions” and “[d]eal with problems involving a few concrete variables in or from standardized situations.” DOT, 1991 WL 688702 (2016). It describes jobs with a GED reasoning level of three as requiring workers to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form” and “[d]eal with problems involving several concrete variables in and from standardized situations.” Id. In Lawrence v. Saul, 941 F.3d 130, 143 (4th Cir. 2019), the court found there was “no . . . inconsistency between” the ALJ's assessment of an RFC for “simple, routine repetitive tasks of unskilled work” and “Level 2's notions of ‘detailed but uninvolved . . . instructions” and tasks with “a few [ ] variables.” Thus, Drs. Jackson and Clanton suggested Plaintiff could perform work with a GED reasoning level of two, and the ALJ assessed an RFC for work up to GED reasoning level three. Compare Tr. at 19, with Tr. at 64-68, 79-83.
As the court recently explained, “[c]ase law supports that there is at the very least an apparent conflict in need of resolution where the RFC found is simple, routine tasks and the jobs identified by the VE are DOT reasoning level three jobs.” Melendez v. Saul, C/A No. 4:19-127-BHH-TER, 2020 WL 2100858, at *7 (D.S.C. Apr. 13, 2020), adopted by 2020 WL 2098195 (D.S.C. May 1, 2020) (citing Reid v. Astrue, C/A No. 6:10-2118-MBS-KFM, 2012 WL 667164, at *12-13) (D.S.C. Feb. 8, 2012); Piner v. Berryhill, C/A No. 3:17-TMC-SVH, 2017 WL 4712084, at *13-14, adopted by 2017 WL 4682004 (D.S.C. Oct. 18, 2017); Christopherson v. Colvin, C/A No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016); et. al. It further noted “[o]ther district courts in the Fourth Circuit have “repeatedly found that a limitation to simple or routine tasks conflicts with jobs requiring a GED reasoning level of three and that such a conflict must be addressed and resolved by the ALJ.” Id. (citing Graham-Willis v. Colvin, C/A No. 1:12-2489-JMC, 2013 WL 6840465, at *7 (D.S.C. Dec. 27, 2013) (collecting cases)).
Unlike the plaintiffs in the cases cited above, Plaintiff is not challenging the ALJ's failure to recognize a conflict between an RFC for simple, routine tasks and a VE's testimony identifying jobs with a GED reasoning level of three. Instead he is challenging what he perceives as inconsistencies between the medical opinions the ALJ found persuasive and his RFC assessment.
Although the ALJ considered Drs. Jackson's and Clanton's opinions to be persuasive in evaluating Plaintiff's RFC, his RFC assessment was not based on their opinions alone. The ALJ found Drs. Jackson's and Clanton's opinions “were grounded in the evidence contained in the record at the time” and that additional evidence received after they reviewed the record “did not provide new information that would significantly alter the conclusions [they] reached.” Tr. at 23. Nevertheless, he cited evidence of Plaintiff's increased functional ability following his inpatient hospitalization for PTSD, which would reasonably explain the deviation between their opinions and the RFC assessment. The ALJ noted “[o]verall, the medical evidence of record shows the claimant made significant improvements following his voluntary inpatient treatment, and there are very few visits of mental health treatment after his discharge from inpatient treatment in March of 2017 (Exhibit 3F, 4F, 7F, 9F).” Tr. at 21. He considered Plaintiff's testimony and presentation during the hearing, noting he was “articulate and engaging, ” had “good attention and concentration, ” “was polite, personable, and well-groomed, ” and “had good memory.” Tr. at 22. He wrote: “After considering the objective medical evidence, subjective statements made by the claimant, and all medical opinions, the undersigned finds that the claimant's residual functional capacity as defined above accurately details the claimant's functional limitations.” Tr. at 23.
As the ALJ relied on evidence in addition to Drs. Jackson's and Clanton's opinions in assessing the RFC, the undersigned does not find he erred in deviating from their opinions in finding Plaintiff could perform work requiring a higher GED reasoning level. However, if the ALJ had erred in this respect, his error would be rendered harmless by his citation of jobs with a GED reasoning level of two, consistent with Drs. Jackson's and Clanton's opinions. Relying on the VE's testimony, the ALJ found that Plaintiff could perform work as a hand packager, a warehouse worker, and a laundry worker, Tr. at 25, which are all described by the DOT as having GED reasoning levels of two. See 920.587-018. HAND PACKAGER. DOT (4th ed. revised 1991), 1991 WL 687916; 922.687-058. LABORER, STORES. DOT (4th ed. revised 1991), 1991 WL 688132; 361.685-018. LAUNDRY WORKER. DOT (4th ed. revised 1991), 1991 WL 672987.
In light of the foregoing, the undersigned recommends the court find the ALJ did not err in assessing Plaintiffs RFC.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “ Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).