Opinion
C/A No.: 1:18-3217-BHH-SVH
10-31-2019
Julia Darlene Thompson, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
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 her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). 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 reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On September 24, 2015, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on September 30, 2014. Tr. at 95, 96, 249-55, 256-64. Her applications were denied initially and upon reconsideration. Tr. at 135-38, 139-42, 146-51. On November 30, 2017, Plaintiff had a video hearing before Administrative Law Judge ("ALJ") Jerry Faust. Tr. at 33-62 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 14, 2018, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 11-32. 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 on November 29, 2018. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 55 years old at the time of the hearing. Tr. at 36. She obtained a GED. Tr. at 36. Her past relevant work ("PRW") was as a restaurant server. Tr. at 54. She alleges she has been unable to work since September 30, 2014. Tr. at 249.
2. Medical History
Plaintiff presented to the emergency room ("ER") at Aiken Regional Medical Centers ("ARMC") on October 9, 2014, complaining of joint pain. Tr. at 461. The attending physician diagnosed chronic generalized pain and prescribed nine Norco 5-325 mg tablets. Tr. at 464.
Plaintiff was admitted to Aurora Pavillion Behavioral Health Services ("Aurora Pavillion") on October 23, 2014, with drug-induced delusions and paranoia. Tr. at 438, 440-41. She tested positive for amphetamines, cannabinoids, and opiates. Tr. at 441. She complained of poor sleep, depression, crying spells, and lack of motivation. Tr. at 438. Merry Deleon, M.D. ("Dr. Deleon"), indicated Plaintiff "selectively attended" group sessions, was "seclusive and minimally interactive with staff and peers," and "was irritable at times with medication seeking behavior." Id. Plaintiff was discharged on October 30, 2014, with diagnoses of methamphetamine dependence, drug-induced psychosis, polysubstance abuse, substance-induced mood disorder, and borderline personality disorder trait. Tr. at 440. Dr. Deleon assessed a global assessment of functioning ("GAF") score of 45 upon discharge. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
On November 20, 2014, Plaintiff presented to Aiken Center for a substance abuse assessment. Tr. at 393-407. She reported a history of amphetamine, marijuana, and opiate use. Tr. at 397. She indicated she had initially used methamphetamine two months prior, had spent up to $60 per day to support her habit, and had checked into Aurora Pavillion upon noticing that it was negatively affecting her health. Id. She stated she had first used opioids following the birth of one of her children, had used as many as six pills per day, and would purchase pills off the street if she did not have a prescription. Tr. at 398. She stated she last used methamphetamine on October 22, 2014, cannabis on October 15, 2014, and opioids on September 25, 2014. Tr. at 397, 398. Addiction counselor William Pressley ("Mr. Pressley"), observed Plaintiff to appear adequately groomed; to be cooperative; to have normal speech; to indicate appropriate thought content; to be oriented to person, place, situation, and time; to demonstrate intact memory; to have focused coping ability; and to show affect appropriate to content. Tr. at 399-400. He diagnosed amphetamine dependence, opioid dependence, and cannabis dependence and indicated all to be in remission. Tr. at 405. He assessed mild occupational problems, problems related to the social environment, problems with primary support group, and economic problems and a global assessment of functioning ("GAF") score of 58. Id. Mr. Pressley recommended Plaintiff participate in intensive outpatient therapy. Tr. at 406. He transferred Plaintiff to another program, but she failed to report and was discharged from services. Tr. at 408, 476-77.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR.
Plaintiff was hospitalized at Aurora Pavillion on September 21, 2015, after threatening to kill her husband and another person. Tr. at 415-437. Upon presentation to Aurora Pavillion, Plaintiff expressed suicidal ideation and was described as rambling, hyperactive, hyperverbal, disheveled, thin, and demanding. Tr. at 418, 430. She tested positive for methamphetamine, cannabis, opiates, and benzodiazepines. Id. Plaintiff became more cooperative after the methamphetamine wore off, but frequently requested Klonopin and higher doses of medication, which were denied. Id. She reported intermittent swelling in her left hand and was prescribed Ultram. Id. Plaintiff's discharge diagnoses included polysubstance dependence, depression, acute anxiety, amphetamine abuse, anxiety disorder, hypokalemia, and oral pain. Tr. at 415. Dr. Deleon observed the following mental status prior to Plaintiff's discharge on October 5, 2015: appropriate, casual appearance; initiates interaction with staff; oriented to person, place, time, and situation; cooperative, pleasant behavior; anxious mood; no psychomotor abnormalities; affect congruent with mood and thought content; anxious, pleasant affect quality; constricted affect range; linear, goal-directed thought process; coherent thought content; no hallucinations; no delusions; understands need for treatment; intact judgment; capable of reality-based thinking; average intelligence; short attention span; and short-term memory deficits. Tr. at 418.
Plaintiff reported her husband was abusing her. Tr. at 418, 421.
Plaintiff presented to Aiken-Barnwell Mental Health Center ("ABMHC") for an initial clinical assessment update on October 15, 2015. Tr. at 473. She complained of depression, inability to sleep, loss of appetite, increased isolation and irritability, and thoughts of hopelessness and worthlessness. Tr. at 475. Carol J. Ardington, LMSW ("S.W. Ardington"), stated Plaintiff "presented neatly dressed, oriented to person, place and time with motor activity appropriate to situation and tearful affect . . . attitude was cooperative, mood was depressed." Id. She stated Plaintiff's "[s]peech, thought process and content were normal." She indicated Plaintiff denied suicidal and homicidal ideation, hallucinations, and delusions. Id. She noted Plaintiff demonstrated poor judgment and insight and good memory and concentration with average fund of knowledge. Id. She recommended Plaintiff participate in individual counseling twice a month to develop coping skills needed to manage depression and substance abuse and address maladaptive cognitive processing. Id.
Plaintiff followed up with ABMHC for an initial psychiatric medical assessment on October 26, 2015. Tr. at 471. She endorsed anxiety, low self-esteem, and depression. Id. The clinician noted the following findings on psychiatric exam: appearance within normal limits; guarded attitude; calm behavior; normal eye contact; normal speech; intact associations; logical/goal-directed thought processes; denies delusions, suicidal ideation, homicidal ideation, obsessions, and hallucinations; depressed and irritable mood; appropriate affect; alert sensorium; oriented to time, place, and person; mildly-impaired recent and remote memory; mildly impaired concentration; average language; poor judgment and insight; and average fund of knowledge. Tr. at 472. The clinician assessed persistent depressive disorder, severe alcohol use disorder, severe amphetamine-type disorder, and moderate cannabis use disorder. Id. He prescribed Citalopram 20 mg, Risperdal 2 mg, Trazodone 200 mg, Trazodone 25 mg, Remeron 15 mg, and Buspar 15 mg. Id.
Plaintiff followed up with Wanda Rowland, R.N. ("Nurse Rowland") at ABMHC for medication monitoring on December 7, 2015. Tr. at 469. She reported symptoms of anxiety, increased appetite, depression, and paranoia, as well as medication-induced side effects of dry mouth and weight gain. Id. She complained of depression, crying spells, and increased anxiety during the day that caused her to rock her body back and forth. Tr. at 470. She requested a prescription for Vistaril and indicated Trazodone was not helping. Id. Nurse Rowland noted Plaintiff appeared neat and clean, demonstrated mildly anxious mood, had clear and organized thoughts, and had gained 22 pounds since October. Id.
Plaintiff presented to Salli E. Rish, MRC, LPC ("Counselor Rish"), for individual therapy on December 17, 2015. Tr. at 505. Counselor Rish observed Plaintiff to be "struggling with rocking constantly" and scheduled her for an appointment with the nurse to address the rocking. Id. Plaintiff indicated she continued to experience crying spell and anxiety. Id. She agreed to practice one coping skill per day. Id.
On December 31, 2015, x-rays of Plaintiff's left hand showed no abnormalities. Tr. at 484. X-rays of her lumbar spine indicated degenerative disc disease characterized by moderate loss of intervertebral disc space and vacuum disc phenomenon at the L5-6 level, as well as mild intervertebral disc space narrowing and disc degeneration at L4-5. Id. Configuration of the vertebrae and vertebral body height were normal. Id. Pedicles and posterior elements were intact. Id. No malalignment, spinal stenosis, or destructive lesions were detected. Id.
On January 11, 2016, Counselor Rish observed Plaintiff to appear neat and clean. Tr. at 506. She again observed Plaintiff to be rocking back and forth during the session. Id. Plaintiff complained of feeling tired and lacking motivation. Id. Counselor Rish encouraged her to use coping tools to deal with stress and anxiety. Id.
On January 13, 2016, Plaintiff complained of erratic sleep, anxiety, occasional panic, poor focus and concentration, low self-esteem, anhedonia, left hand swelling, and rocking back and forth. Tr. at 503. She stated her family did not want her to take medication because the medication made her seem "zombie-like." Id. Plaintiff indicated she was attending substance abuse meetings. Id. Psychiatrist Khoa Tran, M.D. ("Dr. Tran"), noted the following on mental status exam: appearance within normal limits; cooperative attitude; calm behavior; normal eye contact and speech; intact associations; logical/goal-directed thought process; euthymic mood; constricted affect; alert sensorium; oriented to time, place, person, and circumstance; intact recent and remote memory, attention, and concentration; average language and fund of knowledge; good insight and judgment; and good to excellent knowledge of current events. Tr. at 504. He noted Plaintiff denied hallucinations, delusions, and suicidal and homicidal ideation. Id. He discontinued Risperdal and prescribed Citalopram 20 mg, Trazodone 100 mg, Remeron 15 mg, Buspar 15 mg, Vistaril 50 mg, Buspirone 15 mg, Celexa 40 mg, and Seroquel 100 mg. Tr. at 504.
Plaintiff presented to Stephen A. Schacher, M.D. ("Dr. Schacher"), for a consultative medical examination on January 15, 2016. Tr. at 487-92. She complained of migraine headaches, left hand nerve damage, back and leg problems, and impaired vision. Tr. at 487. She reported abilities to stand for three minutes, walk 50 yards, and lift 10 pounds. Id. She indicated inability to write, open jars, and use a keyboard with her left hand. Id. She stated she could dress and groom, shop in a grocery store using a "push buggy," cook, wash dishes, do laundry, sweep, and mop. Tr. at 488. She indicated she was unable to drive because she did not have a license. Id. She claimed she sometimes became agitated in the store and had to leave. Id. She denied engaging in yard work, using a computer, and vacuuming. Id. She stated she "sits and rocks" for most of the day. Id. Dr. Schacher stated Plaintiff "navigate[d] the exam table normally." Id. A neurological examination was normal. Id. Dr. Schacher observed Plaintiff to demonstrate weakened left hand grip of 3/5 and decreased range of motion ("ROM") of the left shoulder. Id. He noted no sensory loss, normal gait and balance, and normal mood and cognition. Id. He stated no diagnosis could be made regarding Plaintiff's weakened left hand grip based on exam alone. Id. Plaintiff demonstrated normal ROM of the cervical spine, lumbar spine, elbows, wrists, knees, hips, and ankles and had normal straight-leg raising. Tr. at 490.
Plaintiff presented to consultative examiner John B. Bradley, Ph.D. ("Dr. Bradley"), for a mental status examination on January 19, 2016. Tr. at 494-99. She reported pain in her back and left leg resulting from sciatica, as well as left hand swelling. Tr. at 494. She stated she had difficulty standing for long periods and using her left hand. Id. Plaintiff reported a history of depression and prior suicide attempt. Id. She indicated she felt sad on most days, experienced crying spells, found little enjoyment in life, had difficulty sleeping, felt tired all the time, had difficulty concentrating, and had poor self-esteem. Id. She endorsed fleeting suicidal ideation, paranoia, and hallucinations. Id. Plaintiff reported she had not used drugs since her admission to Aurora Pavillion. Tr. at 497. She endorsed abilities to manage self-care, perform a few household chores, occasionally cook, and manage her own money. Id. She stated she was not motivated and did little more than sit and rock during a typical day. Id.
Dr. Bradley noted Plaintiff appeared to be minimizing her drug abuse history. Tr. at 497. He observed Plaintiff to be cooperative and polite; to be dressed appropriately and demonstrate good grooming; to have normal gait and posture; to respond to questions and comply with requests; to comprehend and follow simple instructions; to be alert and oriented to time, place, and person; to show a flat affect; to demonstrate a sad facial expression and a depressed mood; to speak in a normal voice and at a normal rate; to discuss appropriate content; to display no evidence of phobias, obsessions, compulsions, or homicidal thinking; to have normal attention and concentration; to demonstrate reasonable memory; to be functioning at a normal level of intelligence; and to have adequate insight and judgment. Tr. at 497-98. Plaintiff obtained a score of 29 on the Folstein Mini-Mental State Examination, which was consistent with no significant cognitive impairment. Tr. at 498. She reported suicidal ideation, but denied suicidal intent. Id.
Dr. Bradley diagnosed polysubstance dependence in remission by client report and persistent depressive disorder. Id. He noted Plaintiff had reported difficulty standing for long periods and lifting and stated "[s]he appears to be mildly limited in this area." Id. He stated Plaintiff denied significant problems in social functioning, but found she had moderate limitations in this area. Tr. at 499. Dr. Bradley assessed moderate limitation in Plaintiff's ability to maintain concentration, persistence, or pace. Id.
On January 20, 2016, state agency medical consultant Ronald Collins, M.D. ("Dr. Collins"), provided the following physical residual functional capacity ("RFC") assessment: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently balancing, stooping, kneeling, crouching, crawling, and climbing ramps/stairs; and never climbing ladders/ropes/scaffolds. Tr. at 70-72, 84-86. A second state agency medical consultant, Stephen Burge, M.D. ("Dr. Burge"), assessed the same physical RFC on May 16, 2016. Compare Tr. at 70-72, 84-86, with Tr. at 107-08, 124-25.
Counselor Rish described Plaintiff as "rock[ing] constantly" during an individual psychotherapy session on January 26, 2016. Tr. at 507. She helped Plaintiff to realize her rocking would cease when she relaxed. Id. Plaintiff reported the rocking helped to soothe her anxiety. Id. She acknowledged her mood improved and anxiety decreased when she reduced her focus on negative thoughts and feelings. Id. She stated coloring helped to reduce her anxiety. Id.
On January 26, 2016, state agency consultant Janet Boland, Ph.D. ("Dr. Boland"), reviewed the record and completed a psychiatric review technique ("PRT"). Tr. at 68-69, 82-83. She considered Listings 12.04 for affective disorders, 12.06 for anxiety-related disorders, and 12.09 for substance addiction disorders, as well as drug and alcohol abuse. Tr. at 68, 82. In evaluating the paragraph "B" criteria under Listings 12.04 and 12.06, Dr. Boland found no repeated episodes of decompensation and assessed mild restriction of activities of daily living ("ADLs"), moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. She provided a mental RFC assessment, finding Plaintiff was moderately limited with respect to the following abilities; to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to work in coordination with or proximity to others without being distracted by them; 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; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to respond appropriately to changes in the work setting; and to set realistic goals or make plans independently of others. Tr. at 72-74, 86-88. She provided the following additional explanation:
Cl[ai]m[an]t should be able to attend to and perform simple unskilled work for reasonable periods of time without supervision. She can attend work regularly, but might miss an occasional day due to her mental illness. She can make work-related decisions, protect herself from work-related safety hazards and travel to and from work independently. She can accept supervision and interact appropriately with co-workers, but might not be suited for work with the general public.Tr. at 74, 88.
On May 12, 2016, a second state agency consultant, Douglas Robbins, Ph.D. ("Dr. Robbins"), considered the same listings as Dr. Boland and assessed the same degree of limitation in the PRT. Compare Tr. at 68-69, 82-83, with Tr. at 103-05, 120-22. He also assessed the same mental RFC. Compare Tr. at 72-74, 86-88, with Tr. at 108-11, 125-28.
Plaintiff presented to the ER at ARMC with lower back pain and nausea on October 29, 2016. Tr. at 511. Plaintiff's blood pressure was low at 69/39 mm/Hg. Tr. at 513. James Mock, M.D. ("Dr. Mock"), diagnosed hypotension, sciatica, and adrenal insufficiency. Tr. at 516.
Plaintiff presented to ARMC Medical Center with low back pain and syncopal episode on January 9, 2017. Tr. at 535. Robert Walker, M.D. ("Dr. Walker"), assessed acute kidney injury secondary to dehydration, depression, hypokalemia, sciatic pain, and syncope and collapse. Tr. at 536-37. He ordered fluid resuscitation, potassium repletion, echocardiography with telemetry, bilateral carotid ultrasonography, and venous thromboembolism prophylaxis. Tr. at 537. Plaintiff's lab work showed some abnormalities, but other diagnostic tests, including x-rays of the lumbar spine, were negative. Tr. at 545, 574. Dr. Walker added Lidoderm for Plaintiff's sciatic pain. Id. He discharged Plaintiff on January 12, 2017, with instructions to follow up with her family doctor within five days. Tr. at 540.
On February 2, 2017, Plaintiff presented to ARMC with a rash on her right buttocks, chest, left upper arm, and lower legs. Tr. at 577. She reported shortness of breath while lying down and facial numbness that had presented earlier in the day. Id. She indicated she self-treated with Benadryl and Morphine 15 mg. Id. Plaintiff denied use of amphetamines, but her drug screen was positive for both opiates and amphetamines. Tr. at 580. Aaron High, M.D., diagnosed contact dermatitis and bronchitis and ordered Tylenol and Atarax. Tr. at 580-81. Plaintiff verbalized frustration and indicated she planned to go to go to another hospital upon discharge. Tr. at 580.
Plaintiff presented to the ER at Augusta University Medical Center later that day. Tr. at 596. The ER physician diagnosed cutaneous sporotrichosis, impetigo, insect bites, and maculopapular rash. Tr. at 597. He discharged Plaintiff with prescriptions for Acetaminophen 325 mg, Clindamycin 300 mg, Itraconazole 100 mg, and Prednisone 50 mg. Id.
Plaintiff was again hospitalized at Aurora Pavillion from February 18 to March 1, 2017, after presenting with depression, anxiety, and suicidal ideation with a plan to overdose. Tr. at 586, 590. She reported her mother had recently passed away, one week after being diagnosed with end-stage lung cancer. Tr. at 589. She endorsed worsened mood, insomnia, anhedonia, and difficulty concentrating. Id. Plaintiff's drug screen was positive for cannabinoids and opiates. Tr. at 591. Zachary Zuschlag, D.O. ("Dr. Zuschlag"), observed the following on mental status exam: appears older than stated age; poor hygiene and grooming; calm and cooperative behavior; no psychomotor agitation or retardation; appropriate rate, rhythm, and volume of speech; bad mood; constricted affect; positive suicidal ideation; no auditory or visual hallucinations or other signs of psychosis; linear and coherent thought process; grossly intact memory; fully oriented; and poor judgment and insight. Id. Plaintiff reported her medications included Buspar, Gabapentin, Remeron, and Adderall, but Dr. Zuschlag indicated it did not appear that the medications had been refilled since 2015. Id. Dr. Zuschlag discontinued Buspar and Remeron, increased Plaintiff's dose of Gabapentin, and started Celexa 20 mg and Seroquel 50 mg. Tr. at 592. He stated Plaintiff "spent the majority of her time with me asking for pain meds, benzos and whatever pill she could get." Tr. at 589. He noted he had informed Plaintiff he "was not going to continue to add more and more pills and that she had to learn to deal with her feelings whether positive or negative." Id.
Plaintiff returned to ABMHC for a new clinical assessment on March 21, 2017. Tr. at 603. She reported difficulty coping with the death of her mother and obtaining medications. Id. She complained of difficulty eating and sleeping. Id. She endorsed suicidal thoughts, but denied suicidal ideation. Id. Counselor Rish indicated the following observations on mental status exam: disheveled appearance and hygiene; appropriate motor activity; cooperative attitude; appropriate affect; depressed, angry, and hopeless mood; normal rate and tone of speech; normal, appropriate, coherent, and relevant thought process; ideas of hopelessness and worthlessness and suicidal thoughts; auditory and visual hallucinations; no evidence of delusions; alert and oriented to person, place, time, and situation; usually able to make sound decisions; acknowledges and understands problems; intact memory; easily distracted concentration and calculations; and average fund of knowledge. Tr. at 605-06. She diagnosed amphetamine abuse in sustained remission, mild cannabis abuse, and depressive disorder, not otherwise specified. Tr. at 606. She stated Plaintiff was struggling with depression, low motivation, and grief and had reported panic attacks while in public and in large crowds. Id.
On May 15, 2017, Plaintiff complained of feeling depressed and suicidal. Tr. at 600. Dr. Tran noted Plaintiff had returned, after missing appointments since January 2016. Id. Plaintiff stated she was angry with her mother, who had passed away eight months prior, because she had not raised her. Id. She indicated she was having difficulty raising her 11-year-old grandson. Id. She stated a friend was allowing her to live with her in exchange for maintaining the household chores. Id. She reported being depressed and anxious, but denied outward agitation. Id. She endorsed fluctuations in mood, hopelessness, helplessness, low self-esteem, guilt, low motivation, social anxiety, crying spells three to four times per week, panic attacks two to three times per week, fluctuating sleep, poor energy, fair appetite, low memory and concentration, and nightmares/flashbacks. Id. Plaintiff indicated good response to Risperdal, over-sedation from Seroquel, poor response to Buspirone, insomnia from Trazodone, and ineffective treatment with Prazosin. Id.
Dr. Tran observed the following on mental status exam: appearance within normal limits; cooperative attitude; calm behavior; normal speech and eye contact; intact associations; logical/goal-directed thought process; persecutory delusions; homicidal ideation present without plan; obsessions; auditory hallucinations; euthymic mood; appropriate affect; alert sensorium; oriented to time, place, person, and circumstance; intact recent and remote memory, attention, and concentration; average language; fair insight; good judgment; good fund of knowledge; and poor to no knowledge of current events. Tr. at 601. He prescribed Latuda 40 mg, Vistaril 25 mg, Wellbutrin SR 100 mg, and Amitriptyline 25 mg. Id. He also noted Plaintiff's prescriptions for Gabapentin 400 mg and Tramadol 50 mg for neuropathy and sciatica. Tr. at 601-02.
On May 16, 2017, Dr. Tran completed a medical opinion RFC form. Tr. at 593-94.
Plaintiff continued to endorse depression related to her mother's death on August 16, 2017. Tr. at 599. Dr. Tran indicated he had increased Plaintiff's doses of Risperdal, Wellbutrin, and Amitriptyline, after she reported no response to Latuda. Tr. at 599. Plaintiff reported compliance with medication and denied side effects. Id. She indicated her cousin was providing her money for medications in exchange for cleaning her house and noted she was doing housework for a friend while the friend worked. Id. She reported increased crying spells caused by the anniversary of her mother's death. Id. She stated her anxiety was high, but she stayed busy to cope with it. Id. She indicated she had experienced panic attacks in public. Id. She endorsed more good than bad days. Id. She indicated she was no longer babysitting her grandson as often, as he had returned to school. Id. She stated her anger lessened with the increase in medication. Id. She reported sleeping roughly four hours per night, but endorsed good energy and appetite. Id. She indicated her memory and concentration were poor. Id. She was unhappy with her counselor. Id. Dr. Tran observed the following on mental status exam: appearance within normal limits; cooperative attitude; calm behavior; eye contact within normal limits; normal speech; intact associations; logical/goal-directed thought process; persecutory delusions; suicidal ideation without plan; euthymic mood; appropriate affect; alert sensorium; oriented to time, place, person, and circumstance; intact recent and remote memory, attention, and concentration; average language; fair judgment; good insight; and average fund of knowledge with good to excellent knowledge of current events. Id.
On November 3, 2017, Dr. Tran provided an additional opinion statement. Tr. at 607.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on November 30, 2017, Plaintiff testified she had worked in 2007 and 2008 as a server at Ryan's Restaurant, where she lifted a maximum of 20 pounds and was on her feet most of the day. Tr. at 37-38. She testified she worked in 2009 and 2010 as a server and crew leader at the Golden Corral, where she lifted a maximum of 25 pounds and was on her feet most of the day. Tr. at 38-39. She said she left that job because she started having problems with her leg and back and emotional problems. Tr. at 39.
Plaintiff testified she had lived with her friend's daughter for the prior year in a trailer. Tr. at 40. She explained she believed her mental health problems predominantly prevented her from working since her onset date. Id. She stated she was bipolar and was severely depressed, having good days and bad days half the time. Id., 51. She described a bad day as crying a lot, being depressed, leg and back pain rated as a seven on a 10-point scale, avoiding people due to paranoia, staying in bed, turning the television on, falling asleep, and being groggy due to medication. Tr. at 41, 47. She noted Dr. Tran had recently increased her medications. Id. Plaintiff indicated on a good day, she could wash dishes for ten minutes at a time before needing to sit for 45 minutes to an hour due to leg and back pain. Tr. at 42. She said on bad days, she would stay in bed all day from depression. Id. She testified she suffered from PTSD from having been molested when she was 12-years old and had nightmares and flashbacks that the medications tried to minimize. Tr. at 43. She noted she also suffered from migraines. Id. She described herself as 5'4" and 170 pounds, noting she had gained 40 pounds due to medication. Id. She said she had nightmares about every other night, was typically tired during the day, and had difficulty concentrating on anything like reading or watching television. Tr. at 43-44. She described being left-handed and being unable to color because of carpal tunnel in that hand, which stayed swollen. Tr. at 44. She also noted having left shoulder problems that went along with her hand problems. Tr. at 44-45.
Plaintiff said she was not on Medicaid and did not have insurance. Tr. at 45. She denied visiting her primary doctor, Dr. Roberts, because she could not afford it. Id. She said she needed a full work-up because she had a lot of health issues with her back and her leg would give way. Id. She testified Dr. Tran at ABMHC had not yet charged her, but she had a pending $4,000 bill. Id. She said her roommate took care of the trailer, and her roommate's mother, Pam McGee ("Ms. McGee"), helped her with phone cards, food, and medicine. Tr. at 45-46. She said Ms. McGee gave her a ride to the hearing. Tr. at 46.
Plaintiff testified sitting aggravated her right leg after 30 or 45 minutes, requiring her to get up and move around to unlock her leg to be able to walk on it. Id. She estimated she could stand for ten minutes and had trouble walking to her mailbox 50 feet away. Tr. at 46-47. She acknowledged having a driver's license, but not driving a lot because her mind would wander and she could not concentrate on the road. Tr. at 47-48. She said she last drove the prior day to the corner store half a mile away. Tr. at 48
Plaintiff initially testified she had not used any illegal drugs since her onset date, but after acknowledging that she had tested positive for multiple drugs in the hospital in September 2015, she stated she had not used drugs in the prior two years. Id. She testified she maintained her sobriety by being around people that supported her, going to counseling, and to her doctor. Tr. at 48-49. She denied going to Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA") meetings and could not remember her sobriety date, but that she quit "cold turkey" two years prior. Tr. at 49. She conceded having quit treatment between January 2016 and April 2017, when she returned to ABMHC and had been going since. Id. She said she was unable to afford treatment for her arm, back, or legs, but took Gabapentin for neuropathy. Tr. at 49-50. She indicated Dr. Tran prescribed Gabapentin, although he had never examined her physically. Tr. at 50.
Plaintiff testified she received food stamps that her roommate managed because she would do the grocery shopping, although she would accompany her roommate every now and then. Id. She denied socializing on Facebook, stated she had she tried, on a very limited basis, to text and use the internet. Tr. at 50-51. She said she attended high school to the tenth grade and obtained her GED later, possibly in 1986 when her son was born. Tr. at 51.
b. Vocational Expert Testimony
Vocational Expert ("VE") Vanessa J. Ennis reviewed the record and testified at the hearing. Tr. at 52-61. The VE categorized Plaintiff's PRW as a server as semi-skilled, light, but medium as performed, with a specific vocational preparation ("SVP") of three, Dictionary of Occupational Titles ("DOT") No. 311.677-014. Tr. at 54. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform medium work; frequently, but not constantly handle and finger on the left; only occasionally reach overhead on the left; occasionally climb ramps, stairs, and ladders; never climb ropes or scaffolds; frequently balance; occasionally stoop, kneel, crouch, and crawl; not more than occasionally be exposed to vibration; perform simple, routine tasks in a relatively safe environment with infrequent changes; have superficial (i.e., no negotiation, confrontation, arbitration, mediation, supervision, or persuasion of others) and occasional (i.e., no more than 1/3 of the day) interaction with others; and rare (i.e., 5% or less) and superficial interaction with the public. Tr. at 54-56. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 56. The ALJ asked whether there were any other jobs in the regional or national economy that the hypothetical person could perform. Id. The VE identified (1) linen clerk, medium, unskilled, SVP 2, DOT No. 222.387-030; (2) laundry laborer, medium, unskilled, SVP 2, DOT No. 361.687-018; (3) box bender, medium, unskilled, SVP 1, DOT No. 641.687-010, with 1,000,000, 400,000 and 230,000 positions available nationally, respectively. Tr. at 57-58.
The ALJ asked a second hypothetical that modified the first hypothetical to limit the individual to the light exertional level. Tr. at 58. The VE identified (1) routing clerk, light, unskilled, SVP 2, DOT No. 222.687-022; (2) retail marker, light, unskilled, SVP 2, DOT No. 209.587-034; (3) garment sorter, light, unskilled, SVP 2, DOT No. 222.687-014, with 400,000, 1,000,000 and 230,000 positions available nationally, respectively. Tr. at 56-58. The VE testified there were no transferable skills from medium to light or sedentary. Tr. at 58.
The ALJ asked a third hypothetical that modified the second hypothetical such that she could not maintain regular attendance, work in coordination with or proximity to others without being unduly distracted by them; be punctual within normal customary limits; complete a normal workday and workweek without interruptions from psychologically-based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; travel to unfamiliar places or use public transportation. Tr. at 58-59. The VE testified that the hypothetical individual could not perform Plaintiff's PRW. Tr. at 59. The VE further testified that if the hypothetical person, due to the combination of impairments and resulting symptoms would be (1) off task 15% of the workday or workweek or (2) twice a month would miss work, be late by an hour or more, or have to leave early by an hour or more, she would not be able to sustain competitive employment. Tr. at 59-60.
In response to questioning by Plaintiff's attorney, the VE testified the maximum percentage of time an employee could be off task and still maintain substantial gainful activity ("SGA") was 15%. Tr. at 61.
2. The ALJ's Findings
In her 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, 2015.
2. The claimant has not engaged in substantial gainful activity since September 30, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: Unspecified bipolar and related disorder, amphetamine-type substance use
disorder, cannabis use disorder, generalized anxiety disorder, panic disorder, post-traumatic stress disorder, degenerative disc disease of the lumbar spine, unspecified attention deficit hyperactivity disorder, and left hand neuropathy (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
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 404.15679(c) and 416.967(c) except she can frequently, but not constantly handle and finger on the left. She can only occasionally reach overhead on the left. She can occasionally climb ramps and stairs. She can occasionally climb ladders, but cannot climb ropes or scaffolds. She can frequently balance, and occasionally stoop, kneel, crouch, and crawl. She can have no more than occasional exposure to vibrations. She can perform simple routine tasks in a relatively static environment with infrequent changes. She can have superficial (no negotiation, no confrontation, no arbitration, no mediation, and no supervision or persuasion of others) and occasional (no more than 1/3 of the day) interaction with others and rare (5% or less) and superficial contact with the public.
6. The claimant cannot perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 18, 1962 and was 52 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date. The claimant subsequently changed to the advanced age category (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and communicates in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using 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, 404.1569(a), 416.969, and 416.969(a)).Tr. at 17-25. II. Discussion
11. The claimant has not been under a disability, as defined in the Social Security Act, from September 30, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not properly evaluate her treating psychiatrist's opinions;
2) the ALJ did not explain his RFC assessment in accordance with the requirements of SSR 96-8p;
3) the ALJ failed to properly consider Plaintiff's subjective complaints; and
4) the ALJ did not adequately apply the Medical-Vocational Guidelines as a framework for decision making.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her 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 she 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 her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. 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), 416.920(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, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 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).
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), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her 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 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 she 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 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." Richardson, 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 her 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. Dr. Tran's Opinion
Dr. Tran completed a medical opinion RFC form on May 16, 2017, in which he stated Plaintiff was unable to meet competitive expectations for the following: completing a normal workday and workweek without interruption from psychologically-based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; carrying out detailed instructions; and dealing with stress of semi-skilled and skilled work. Id. He noted Plaintiff would be seriously limited with respect to the following mental aptitudes and abilities: maintain attention for two hour segment; maintain regular attendance and be punctual within customary, usually strict tolerances; work in coordination with or proximity to others without being unduly distracted; get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes; deal with normal work stress; understand and remember detailed instructions; set realistic goals and make plans independently of others; travel in unfamiliar places; and use public transportation. Id. He wrote "[c]hronic impairment of concentration/attention interferes with ability to carry out detailed instructions; mood/anxiety disorder interferes with ability to handle stress associated with a normal workday, consistent pace of work." Tr. at 594. He further indicated Plaintiff "gets panic attacks on a regular basis" and experiences "severe anxiety as well a social phobia (which would interfere with ability to work around others and interact[)]." Id. He noted Plaintiff had "fatigue from inconsistent quality of sleep as well as medication side effects." Id.
Dr. Tran offered an additional statement on November 3, 2017, providing:
It is my opinion that the severity of the claimant's impairments, as documented in the Medical Opinion Re: Ability to Do Work-Related Activities (Mental), which I completed on 5/16/17, have existed since on or before 9/30/2014 and continue to exist through the present date. It is also my opinion that the severity of Ms.
Thompson's impairments would exist absent the use of any drugs and/or alcohol.Tr. at 607.
Plaintiff argues the ALJ did not properly assess Dr. Tran's opinions. [ECF No. 14 at 31]. She specifically maintains the ALJ did not consider the consistency of Dr. Tran's opinions with the other evidence of record. Id. at 34-35.
The Commissioner argues substantial evidence supports the ALJ's evaluation of Dr. Tran's opinions. [ECF No. 16 at 18-19]. He maintains the ALJ explained that Dr. Tran's opinions were inconsistent with his treatment notes and the other substantial evidence of record. Id. at 19. He contends much of the evidence Plaintiff cites as being inconsistent with Dr. Tran's opinions pertains to the period when she was under the influence of substances or noncompliant with medication. Id.
Medical opinions are "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical and mental restrictions." SSR 96-5p (quoting 20 C.F.R. § 416.927(a)(2)). The applicable regulations direct ALJs to accord controlling weight to treating physicians' medical opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "[T]reating physicians are given 'more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'" Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
Effective March 27, 2017, the Social Security Administration rescinded SSR 96-2p, and it no longer applies the "treating physician rule." Rescission of SSR 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (March 27, 2017); 20 C.F.R. §§ 404.1520c, 416.920c (2017). The undersigned will review the ALJ's decision under the old rules codified by 20 C.F.R. §§ 404.1527 and 416.927 because the new regulation is not retroactive and Plaintiff filed her claim before it took effect. See 82 Fed. Reg. 15,263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017"); see also 20 C.F.R. § 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply"); 20 C.F.R. § 416.920c (stating "[f]or claims filed before March 27, 2017, the rules in § 416.927 apply").
If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's assessment of the treating physician's opinion does not end with the finding that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must weigh the treating physician's opinion, in addition to the other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c) and 416.927(c), which include "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527).
"[T]he ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). However, if the ALJ issues a decision that is not fully favorable, his 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 adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The court should not disturb an ALJ's determination "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).
The ALJ discussed Dr. Tran's opinion as follows:
Doctor Khoa Tran, a treating source for the claimant, opined that the claimant was seriously mentally limited and that these limitations would exist absent the use of any drugs and/or alcohol (Exhibits 12F and 15F). The undersigned gives this opinion little weight. Doctor Tran's opinion is inconsistent with his treatment notes, which show euthymic mood, and intact concentration and attention (Exhibits 8F and 14F). The record reflects minimal treatment and noncompliance with medical advice that has been offered. The claimant has ongoing substance abuse, and yet has the ability to maintain her own household. Opinion[s] need to [be] well supported. This opinion is not well supported. It is also inconsistent with the two State Agency Consultants, who in addition to being mental health experts are disability program experts and the mental health consultative examiner. It is not corroborated by any other opinions. Based on this, the undersigned affords this opinion little weight.Tr. at 24.
As Plaintiff's treating psychiatrist, Dr. Tran's opinion was presumably entitled to controlling weight. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The ALJ pointed to adequate evidence to sustain his conclusion that Dr. Tran's opinion did not deserve controlling weight, but he did not adequately consider the relevant factors in 20 C.F.R. §§ 404.1527(c) and 416.927(c) in according little weight to Dr. Tran's opinion.
In particular, the ALJ failed to acknowledge consistency between the opinions of Drs. Tran and Bradley, erroneously stating Dr. Tran's opinion was not corroborated by any other opinions. See Tr. at 24; see also 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). This error is particularly concerning because Drs. Tran and Bradley were the only two examining psychiatrists to address Plaintiff's work-related functional limitations.
Dr. Bradley addressed Plaintiff's ability to maintain concentration, persistence, or pace as follows:
[Plaintiff's] energy is low and she lacks motivation due to depression. Her pace would probably be below average on a simple job. Her depression and anxiety would interfere with her reasoning, her ability to solve problems, and her ability to remember detailed instructions. Her low energy level would also impact her persistence . . . Her psychological difficulties impair her motivation . . . .Tr. at 499. He indicated Plaintiff's frequent depression "may cause some difficulties with others relating to her." Id.
Dr. Bradley's opinion is consistent with that of Dr. Tran in that both indicated Plaintiff would have difficulty performing simple work at a consistent and competitive pace, remembering and carrying out detailed instructions, and working around and getting along with coworkers without unduly distracting them. Compare Tr. at 499, with Tr. at 593-94. Despite this consistency, the ALJ erroneously concluded Dr. Tran's opinion was inconsistent with "the mental health consultative examiner"—Dr. Bradley. See Tr. at 24.
The ALJ also failed to acknowledge other evidence of record that was consistent with Dr. Tran's opinion, including Counselor Rish's observations that Plaintiff rocked her body in response to increased anxiety. See Tr. at 505, 506, 507. He did not consider the consistency between Dr. Tran's opinion and Plaintiff's statements to Dr. Tran and other mental health providers. See Tr. at 494 (indicating she felt sad on most days, experienced crying spells, found little enjoyment in life, had difficulty sleeping, felt tired all the time, had difficulty concentrating, and had poor self-esteem), 503 (describing erratic sleep, anxiety, occasional panic, poor focus and concentration, low self-esteem, anhedonia, and rocking back and forth); 599 (stating her memory and concentration were poor); 600 (endorsing fluctuations in mood, hopelessness, helplessness, low self-esteem, guilt, low motivation, social anxiety, crying spells three to four times per week, panic attacks two to three times per week, fluctuating sleep, poor energy, fair appetite, low memory and concentration, and nightmares/flashbacks).
In light of the foregoing, the undersigned recommends the court find substantial evidence does not support the ALJ's allocation of little weight to Dr. Tran's opinion.
2. RFC Assessment
Plaintiff argues the ALJ did not explain his RFC assessment as required by SSR 96-8p. [ECF No. 14 at 14-19]. She maintains the ALJ failed to include adequate restrictions in the RFC assessment to address her moderate difficulties in maintaining concentration, persistence, or pace. Id. at 15.
The Commissioner argues the ALJ provided a narrative discussion, identifying the evidence that supported the assessed RFC. [ECF No. 16 at 8]. He maintains the ALJ specifically considered each of Plaintiff's impairments and the restrictions they imposed. Id. at 9-11. He contends the ALJ explained how the assessed RFC accommodated Plaintiff's moderate limitations in concentration, persistence, or pace. Id. at 11-15.
A claimant's RFC represents the most she can still do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It must be based on all the relevant evidence in the case record and should account for all the claimant's medically-determinable impairments. Id. The RFC assessment requires a narrative discussion describing how all the relevant evidence in the case record 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 *7 (1996). The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. Id., at *7.
Pursuant to 20 C.F.R. §§ 404.1520a(a) and 416.920a(a), the Social Security Administration ("SSA") uses a special technique for evaluating the severity of mental impairments at each level of the administrative review process. The adjudicator "must first evaluate [the claimant's] pertinent symptoms, signs, and laboratory findings to determine whether [she] has a medically-determinable mental impairment." 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). If the adjudicator determines the claimant has a medically-determinable mental impairment, he "must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s) and document [his] findings." Id. He "must then rate the degree of functional limitation resulting from the impairment(s)" in the areas of understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). Adjudicators are instructed to "rate the degree of [the claimant's] functional limitation based on the extent to which [her] impairment(s) interfere with [her] ability to function independently, appropriately, effectively, and on a sustained basis," which may involve consideration of "the quality and level of [her] overall functional performance, any episodic limitations, the amount of supervision or assistance [she] require[s], and the settings in which [she is] able to function." 20 C.F.R. §§ 404.1520a(c)(2), 416.920a(c)(2). If the adjudicator assesses a degree of limitation that is consistent with severe mental impairment, but that neither meets or is equivalent in severity to a listing, he must account for the mental impairment in assessing the claimant's RFC. 20 C.F.R. §§ 404.1520a(d), 416.920a(d).
Evaluation of a claimant's ability to concentrate, persist, or maintain pace requires consideration of her "abilities to focus attention on work activities and stay on task at a sustained rate." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(E)(3). Examples of this area of functioning include, but are not limited to, the following:
[i]nitiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day.Id.
The listing indicates the examples illustrate the nature of the area of mental functioning, but documentation of all examples is not needed. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(E)(3).
The ALJ assessed medically-determinable mental impairments that included unspecified bipolar and related disorder, generalized anxiety disorder, panic disorder, post-traumatic stress disorder, and unspecified attention deficit hyperactivity disorder. Tr. at 17. In rating the degree of functional limitation imposed by Plaintiff's medically-determinable mental impairments, he assessed moderate limitation in concentrating, persisting, or maintaining pace, and explained as follows:
When claimant was admitted to Aurora Pavilion [sic] Behavioral Services inpatient care, doctors noted that she had a short attention span (Exhibit 2F at 10). During an appointment in October 2015, doctors noted that the claimant's concentration had a mild impairment (Exhibit 3F at 6). During an appointment in April 2016, doctors noted that the claimant's concentration was intact (Exhibit 8F at 5). The claimant stated on her function report that her condition affects her ability to concentrate (Exhibit 14E at 7).Tr. at 18-19. He subsequently assessed an RFC limiting Plaintiff to "simple routine tasks in a relatively static environment with infrequent changes"; "superficial (no negotiation, no confrontation, no arbitration, no mediation, and no supervision or persuasion of others) and occasional (no more than 1/3 of the day) interaction with others"; and "rare (5% or less) and superficial contact with the public." Tr. at 19. The ALJ explained he restricted Plaintiff to "rare and superficial interactions with the public and superficial and occasional interactions with others" based on bipolar disorder. Tr. at 20-21. He stated he included "the limitation regarding simplicity, stability and interaction with others" based on Plaintiff's anxiety and history of attention deficit hyperactivity disorder. Tr. at 21-22.
Absent from the ALJ's decision is any discussion as to whether Plaintiff maintained the ability to work at an appropriate and consistent pace. "[A]n ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work,'" as "the ability to perform simple tasks differs from the ability to stay on task" and "[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Mascio, 780 F.3d at 638 (citing Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). As discussed above, Drs. Tran and Bradley opined that Plaintiff would likely perform tasks at a below average pace. See Tr. at 499, 593-94. Furthermore, as Plaintiff argues in her brief, other evidence suggests her pace and ability to remain on task for extended periods might be reduced by symptoms of sleep disturbance, impaired concentration, agitation, anxiety, poor energy, reduced motivation, suicidal ideation, and persecutory delusions. See Tr. at 438, 472, 496, 503, 506, 599, 600, 601, 605-06. Given the opinions of Drs. Tran and Bradley and the other evidence of record, the ALJ was required to explicitly consider whether Plaintiff was able to maintain competitive pace. Because he failed to do so, he did not adequately accommodate Plaintiff's moderate limitation in concentrating, persisting, or maintaining pace by restricting her to simple routine tasks in a relatively static environment with infrequent changes.
In addition, the ALJ did not provide reasons for accepting or rejecting indications from Drs. Tran and Bradley that Plaintiff would be unable to remember and carry out detailed instructions. Compare Tr. at 19, with Tr. at 499, 593-94. Although the ALJ limited Plaintiff to "simple routine tasks" in the RFC assessment, "simple routine tasks" may not adequately address the type of instructions Plaintiff can remember and follow. Cf. Thomas v. Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019) (finding an apparent conflict between an RFC limiting the plaintiff to "short, simple instructions" and jobs having a specific vocational preparation for "detailed but uninvolved instructions"); Lawrence v. Saul, No. 18-1112, 2019 WL 5445048, at *3 (4th Cir. 2019) (finding no apparent conflict between "simple, routine repetitive tasks of unskilled work" and "'detailed but uninvolved . . . instructions' and tasks with 'a few [ ] variables").
"[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, 780 F.3d at 636 (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). Because the ALJ has failed to assess Plaintiff's capacity to perform relevant functions pertinent to a finding of moderate limitation in concentration, persistence, or pace, the undersigned recommends the court remand the case.
3. Additional Allegations of Error
Plaintiff argues the ALJ improperly considered her failure to obtain physical therapy, pain management, pain injections, and surgical consultations, despite evidence that she was unable to afford such treatment. [ECF No. 14 at 35]. She claims the ALJ misrepresented the record in discussing her ADLs and failed to explain how the ADLs he cited supported his conclusion that she could perform medium work. Id. at 35-36. She further maintains the VE's testimony conflicts with the DOT with respect to the jobs of linen room attendant and box bender, and the ALJ did not properly apply the Medical-Vocational Guidelines as a framework for decision making in accordance with SSR 83-12. Id. at 19, 21-22.
The Commissioner argues the ALJ evaluated Plaintiff's subjective allegations of pain and other symptoms in accordance with 20 C.F.R. §§ 404.1529 and 416.929. [ECF No. 16 at 20]. He maintains the ALJ reasonably relied on VE testimony to support the finding that Plaintiff's RFC would allow her to perform a significant number of jobs in the economy, appropriately used the Medical-Vocational Guidelines as a framework for decision making, and was not required to apply the Medical-Vocational Guidelines for light, as opposed to medium, work. Id. at 17-18
The Commissioner concedes the VE's identification of jobs of linen clerk and box bender apparently conflict with the information in the DOT, but maintains there was no conflict with respect to the job of laundry laborer. [ECF No. 16 at 16].
In light of the recommendation that the case be remanded on other grounds, the undersigned declines to address Plaintiff's additional allegations of error. However, given the conceded error in failing to resolve conflicts between the VE's testimony and the DOT with respect to two of the three jobs identified, the ALJ should resolve any actual or apparent errors between the VE's testimony and the DOT on remand. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. October 31, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).