Opinion
C/A No. 0:19-1557-BHH-PJG
06-02-2020
Linda A. Tillman, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Linda A. Tillman, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 416.920(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In June 2015, Tillman applied for SSI, alleging disability beginning April 1, 2015. Tillman's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on May 11, 2018, at which Tillman appeared and testified and was represented by Timothy A. Clardy, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on August 13, 2018, concluding that Tillman had not been disabled since the application was filed on June 2, 2015. (Tr. 13-24.)
Tillman was born in 1957 and was fifty-seven years old on the date the application was filed. She has a sixth-grade education and has past relevant work experience as an assembly worker at a shirt factory, a clerk at a dry cleaner, and a maintenance worker at a vinyl top manufacturer. (Tr. 302.) Tillman alleged disability due to a stroke. (Tr. 301.)
In applying the five-step sequential process, the ALJ found that Tillman had not engaged in substantial gainful activity since June 2, 2015—the date the application was filed. The ALJ also determined that Tillman's history of cognitive disorder, severe articulation disfluency, and polysubstance abuse were severe impairments. However, the ALJ found that Tillman did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Tillman retained the residual functional capacity to
perform a full range of work at all exertional levels but with the following non-exertional limitations: The claimant is limited to communicating simple information. The claimant can frequently work at unprotected heights and around moving mechanical parts. The claimant can sustain concentration, persistence and pace sufficient to perform simple, routine and repetitive tasks. The claimant is limited to making simple work-related decisions and can occasionally interact with the public.(Tr. 17.) The ALJ found that Tillman had no past relevant work, but that considering Tillman's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Tillman could perform. Therefore, the ALJ found that Tillman had not been disabled since her application was filed on June 2, 2015.
The Appeals Council denied Tillman's request for review on May 9, 2019, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Tillman raises the following issues for this judicial review:
A. Inadequate evaluation of medical opinion evidence. An ALJ is required to weigh the medical opinion evidence and to account for the limitations found or provide reasons based on substantial evidence for their rejection. The ALJ gave little weight to each of the medical opinions on Tillman's physical limitations. Is a decision that fails to fully articulate the basis for the weight afforded the medical opinion evidence supported by substantial evidence?(Pl.'s Br., ECF No. 3.)
B. Inadequate consideration of prior disability findings. An ALJ is required to consider a prior finding in a disability proceeding, give that evidence appropriate weight, and provide an explanation for discrediting or failing to adopt past administrative findings. Here, the ALJ gave little weight to the prior ALJ decision based solely on the timing of that decision. Where an ALJ does not fully explain his conclusion, is the decision supported by substantial evidence?
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 416.913, 416.927. Because the instant claims were filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Tillman's application for benefits was filed, unless otherwise specified.
Tillman first challenges the ALJ's evaluation of the opinion evidence. Specifically, Tillman argues that the ALJ erred in evaluating the opinion evidence from Dr. Stephen Smith, a consultative examiner, as well as the opinion evidence regarding Tillman's physical limitations from the state agency record reviewers. Upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to agree with Tillman and recommend that this matter be remanded for further consideration and analysis by the ALJ. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence as the decision provides very little actual analysis as to why the ALJ discounted these opinions and even which aspects of the opinions were discounted.
The law applicable to Tillman's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 416.927(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (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 v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 416.927(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590). Importantly, ALJs are instructed to apply the above factors—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions, including those from consultative or one-time examiners. 20 C.F.R. § 419.927(c). Moreover, more weight is generally given to the opinions of an examining source than a non-examining one. 20 C.F.R. § 416.927(c). Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id.
As stated above, upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the ALJ stated the following with regard to the opinions at issue:
The claimant underwent a consultative examination with Stephen Smith, M.D., in October 2015 (Ex. B12F). She reported that she was able to dress and bathe herself, but could not button her clothes. She reported that she was able to drive, lift five pounds, stand for five minutes and walk for short distances. Her speech was 50% intelligible and she appeared to have 100% hearing, despite complaints of poor hearing in her right ear. She walked with a slightly antalgic gait without the use of an assistive device, and exhibited mild difficulty climbing on and off the exam table. She exhibited 3/5 grip strength, 4/5 muscle strength and a decreased range of motion, but normal heart and lung sounds and a non-tender abdomen. She complained of pain with movement and to palpation in her spine, but was able to perform negative straight leg raises. She exhibited normal mentation, adequate hygiene and was able to follow simple instructions. A right knee x ray study performed at this time revealed no fracture or joint space loss (Ex. B10F). A lumbar spine x ray revealed no significant abnormalities. Dr. Smith speculated that the claimant might "have difficulty with being in an occupation where she was expected to be on her feet for extended periods of time." (Ex. B12F/5)(Tr. 20-21, 22.) Elsewhere in the decision, the ALJ summarized Tillman's hearing testimony and the medical records. (Tr. 18-20, 21.) The ALJ concluded that although Tillman received treatment for allegedly disabling impairments, her treatment has been routine and conservative in nature with minimal objective findings of disabling limitations. The ALJ also found that when Tillman is maintained on her medication that her symptoms improved significantly. (Tr. 22.)
. . . .
Little weight is given to the opinion of Dr. Smith, who performed a consultative examination (Ex. B12F). Dr. Smith admitted that his findings were based upon speculation, due to the claimant's limited cooperation during the examination.
. . . .
Little weight is given to the State agency medical consultant's findings of physical limitations. The evidence suggests that the claimant is limited only by non-exertional factors.
Dr. Smith's opinion repeatedly mentioned the extreme difficulty in examining Tillman and stated that she would "perhaps" have "difficulty with being in an occupation where she was expected to be on her feet for extended periods of time, lift [] weight, bend, stoop, or walk for extended periods of time." (Tr. 630.) However, the ALJ's decision does not point to any evidence that is inconsistent with Dr. Smith's findings. Moreover, the only other opinions in the record regarding Tillman's physical limitations were the state agency record reviewers, and the ALJ similarly summarily discounted those opinions. See 20 C.F.R. § 416.913a(b)(1) ("Administrative law judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to §§ 416.920b, 416.920c, 416.927 as appropriate, because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation."). Thus, it is unclear which aspects of the challenged opinions are inconsistent with which records, and it is unclear which parts of the opinions were discounted and why. The ALJ appears to have discounted these opinions without explanation as to how these opinions are inconsistent with and unsupported by the evidence or the clinical findings. While the Commissioner provides some argument and possible factual support for the ALJ's conclusions, the ALJ's decision lacks this analysis. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding meaningful review was precluded where an ALJ gave an opinion limited weight because "the objective evidence or the claimant's treatment history did not support the consultative examiner's findings" but did not specify what objective evidence or treatment history he was referring to).
In summary, upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision to discount the above opinions is supported by substantial evidence. See 20 C.F.R. § 416.927(c); cf. Mastro, 270 F.3d at 178 (stating that "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight") (internal quotation marks and citation omitted). Even considering the ALJ's decision in its entirety, it is unclear whether the ALJ applied the requisite factors and which aspects of the evidence the ALJ believed would support his determination that these opinions were entitled to little weight. Therefore, the court is constrained to agree with Tillman that the ALJ's conclusory evaluation of the opinion evidence leaves the court guessing as to the support for the reasons these opinions were given little weight. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Moreover, where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence.
Accordingly, the court expresses no opinion as to whether further consideration of the opinion evidence by the ALJ should necessarily lead to a finding that the opinions at issue are entitled to additional weight or that Tillman is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
On remand, the ALJ should similarly be directed to comply with the requirements of Albright v. Commissioner of the Social Security Administration, 174 F.3d 473 (4th Cir. 1999); Lively v. Secretary of Human Services, 820 F.2d 1391 (4th Cir. 1987); and Acquiescence Ruling ("AR") 00-1(4). Pertinent here, the previous ALJ determined that Tillman retained the residual functional capacity to perform a range of medium work; however, the ALJ in Tillman's current application determined that Tillman retained the residual functional capacity to perform a full range of work at all exertional levels with some non-exertional limitations. Following the Albright decision, AR 00-1(4), 2000 WL 17162, was issued, summarizing the holdings of Lively and Albright and explaining how the Social Security Administration will apply the Albright decision within the Fourth Circuit. Pertinent here, this ruling provides as follows:
When adjudicating a subsequent disability claim arising under the same or a different title of the Act as the prior claim, an adjudicator determining whether a claimant is disabled during a previously unadjudicated period must consider such a prior finding as evidence and give it appropriate weight in light of all relevant facts and circumstances. In determining the weight to be given such a prior finding, an adjudicator will consider such factors as: (1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.
Where the prior finding was about a fact which is subject to change with the passage of time, such as a claimant's residual functional capacity, or that a claimant does or does not have an impairment(s) which is severe, the likelihood that such fact has changed generally increases as the interval of time between the previously adjudicated period and the period being adjudicated increases. An adjudicator should give greater weight to such a prior finding when the previously adjudicated period is close in time to the period being adjudicated in the subsequent claim, e.g., a few weeks as in Lively. An adjudicator generally should give less weight to such a prior finding as the proximity of the period previously adjudicated to the period being adjudicated in the subsequent claim becomes more remote, e.g., where the relevant time period exceeds three years as in Albright. In determining the weight
to be given such a prior finding, an adjudicator must consider all relevant facts and circumstances on a case-by-case basis.AR 00-1(4), 2000 WL 17162.
Here, the ALJ simply stated that "[l]ittle weight is given to the prior decision by Judge Avot, which I considered pursuant to the Albright AR, as it is too far removed in time (Ex. B7A)." (Tr. 22.) Although passage of time is a relevant factor for consideration, it is unclear whether the ALJ considered all relevant facts and circumstances on a case-by-case basis. Accordingly, the court also recommends remand for further consideration of the prior ALJ decision.
Although Tillman seeks a reversal and remand for an award of benefits, the court finds that, contrary to Tillman's arguments, her entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above discussed evidence by the Commissioner in the first instance. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) ("Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court.") (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) ("Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than 'reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A.").
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. June 2, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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).