Opinion
5:20-CV-104-M
09-14-2021
LINDA F. WADE, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-36, -45] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Linda F. Wade (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions [DE-37, -46]. Plaintiff responded to Defendant's motion for judgment on the pleadings [DE-47] and the time for filing a reply has expired. Accordingly, the pending motions are ripe for adjudication. The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on July 7, 2014, alleging disability beginning August 20, 2002. Transcript of Proceedings (“Tr.”) 170-76. Her claim was denied initially. Tr. 96-101. Plaintiff filed a request for reconsideration (Tr. 116), and was denied upon reconsideration on October 27, 2014 (Tr. 117-20). On December 19, 2014, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 124. A hearing before the ALJ was held on August 23, 2016, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 42-95. On January 23, 2017, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 24-41.
On January 23, 2017, Plaintiff requested a review of the ALJ's decision by the Appeals Council and submitted additional evidence as part of her request. Tr. 1. After reviewing and incorporating the additional evidence into the record, the Appeals Council denied Plaintiff's request for review on May 5, 2017. Tr. 1-4. Plaintiff then filed a complaint in this court seeking review of the then-final administrative decision. Tr. 1780-81; see 5:17-CV-335-JG. On March 19, 2018, United States Magistrate Judge James E. Gates granted the Commissioner's consent motion to remand the matter pursuant to sentence four of 42 U.S.C. § 405 for further administrative proceedings. Tr. 1775-76.
On April 10, 2019, a second administrative hearing was held before the same ALJ, at which Plaintiff, represented by counsel, appeared and testified. Tr. 1711-67. Two medical experts also appeared and testified at the hearing: (1) Dr. John Kwock, an orthopedic surgeon, who testified regarding Plaintiff's physical impairments (Tr. 1731-44), and (2) Dr. Nicole Martinez, a psychologist, who testified regarding Plaintiff's mental impairments (Tr. 1745-59). A VE, Theodore Sawyer, was present, however the ALJ did not call him to testify. Tr. 1716-17, 1765. Instead, the ALJ requested that the VE complete a written vocational interrogatory. Tr. 2012-17. The VE provided a completed vocational interrogatory on May 17, 2019 (Tr. 2018-21), an amended interrogatory response on June 11, 2019 (Tr. 2026-29), and a letter reviewing the amended response on June 17, 2019 (Tr. 2025). On November 19, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 1685-1700. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”], ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and, adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his or her written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not under a disability, as defined in the Social Security Act, through December 31, 2007, the date last insured.” Tr. 1700. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since December 31, 2007, the alleged onset date. Tr. 1690. Next, at step two, the ALJ determined Plaintiff had the following severe impairments: depressive disorder, post-traumatic stress disorder (“PTSD”), history of right breast cancer status post mastectomy, and degenerative disc disease. Tr. 1691. The ALJ also found Plaintiff had non-severe impairments of: pelvic inflammatory disease, obesity with a body max index of 30.7, tendinitis, allergic rhinitis, and gastroesophageal reflux disease. Tr. 1691.
At step three, the ALJ concluded that between August 2, 2002 and May 1, 2007, Plaintiff had an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 404.1520(d), 404.1525, and 404.1526. Tr. 1691. Specifically, the ALJ found that the severity of Plaintiff's “PTSD met Medical Listing 12.15 from August 2, 2002 through May 1, 2007, the period of medical documentation in the record.” Tr. 1691-92. Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments during this period resulted in a moderate limitation in understanding, remembering, or applying information; marked limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and, a marked limitation in adapting or managing oneself. Tr. 1691.
However, the ALJ found that Plaintiff was not entitled to benefits for her closed period of disability due to PTSD. In addressing Plaintiff's eligibility to be awarded benefits for this period, the ALJ explains:
However, pursuant to 20 CFR 404.315(a), which states that an individual can be eligible for benefits if “. . . you had a disability that ended within the 12-month period before the month you applied.” Moreover, 20 CFR 404.322 holds that “[i]f because of a physical or mental condition you did not apply for a period of disability within 12 months after your period of disability ended, you may apply not more than 36 months after the month in which your disability ended.” The claimant initially filed for Title II benefits on July 7, 2014. To be awarded benefits for a closed period of August 20, 2002 through May 1, 2007, the claimant would have had to file by May 2010. Accordingly, the claimant did not file for benefits within the requisite timeframe and is not entitled to benefits despite her condition meeting the medical listings during that period.Tr. 1692.
The ALJ then determined that from May 1, 2007 through the date last insured, the severity of Plaintiff's impairments, singly and in combination, did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 404.1520(d), 404.1525, and 404.1526. Tr. 1692-93. Specifically, the ALJ found that from May 1, 2007 through the date last insured, the severity of Plaintiff's mental impairments, including her PTSD, did not meet or medically equal the criteria of Medical Listings 12.04 and 12.15. Tr. 1693. The ALJ determined that after May 1, 2007, Plaintiff had a mild limitation in understanding, remembering, or applying information; moderate limitation when interacting with others; moderate limitation with regard to concentrating, persisting or maintaining pace; and, moderate limitation for adapting or managing oneself. Tr. 1693. The ALJ reached this conclusion noting that because Plaintiff's mental impairments did not cause at least two “marked” limitations or one “extreme” limitation, the “paragraph B” criteria were not satisfied. Tr. 1693. The ALJ then determined that the “medical evidence of record does not indicate that the claimant suffers from depression or PTSD” to the degree required to satisfy the “paragraph C” criteria. Tr. 1693.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, and found that Plaintiff had the ability to perform medium work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, we[, the Social Security Administration, ] determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. “Sitting” generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id. “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we[, the Social Security Administration, ] determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
The claimant can occasionally reach overhead with the right upper extremity; she cannot climb ladders, ropes or scaffolds; she can understand, remember and carry out instructions that is consistent with a reasoning level of “two” or “three” as defined in the Dictionary of Occupational Titles; she can sustain concentration, attention, and pace sufficient enough to carry out those instructions over the course of an eight-hour workday and at two-hour intervals; she can work in proximity to, but not in coordination with co-workers and supervisors; she can have no contact with the public; she can work in a low-stress setting, which is specifically defined to mean no fast paced production, only simple work related decisions, and few or no changes in the work setting.Tr. 1694. In making this assessment, the ALJ found Plaintiff's statements about the intensity, persistence, and limiting effects of the alleged symptoms that could reasonably be expected to be caused by her medically determinable impairments were “not entirely consistent with the medical evidence and other evidence in the record . . . .” Tr. 1695.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work through the date last insured. Tr. 1698. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that, through the date last insured, Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. Tr. 1700.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to adjust Plaintiff's date last insured, therefore failing to adjudicate Plaintiff's claim for disability benefits prior to the date last insured; (2) improperly substituting her opinion for that of the medical experts, in that the ALJ assigned no significant weight to any medical opinions and presumed without substantial evidence that Plaintiff's condition dramatically improved after Plaintiff was no longer able to access psychotherapy at the Vet Center; and, (3) failing to properly credit the Veterans Affairs (“VA ”) finding that Plaintiff is permanently and totally disabled under Bird v. Commissioner of Social Security Administration, 699 F.3d 337, 343 (4th Cir. 2012). Pl.'s Mem. [DE-37] at 1-2. Each is discussed below.
VI. ANALYSIS
A. Medical History
Plaintiff was born on January 24, 1956. Tr. 1554. At the time Plaintiff filed an application for a period of disability and DIB on July 7, 2014, she was 58 years old. Plaintiff served in the United States Army from 1974 to 1975 (Tr. 1558), where she was stationed at Fort Hood. While in the Army, Plaintiff reported sexual harassment and sexual assaulted by fellow service members (Tr. 1559-62, 1576-80) and was sexually assaulted by one of her superior officers (Tr. 1578). Plaintiff married a fellow service member, Robert Wade. (Tr. 1579), and states that her husband raped and physically assaulted her, including an assault where he broke her teeth (Tr. 1561, 1576-79).
Plaintiff was discharged from the military in 1975. Tr. 1579. She states that the physical and sexual abuse by her husband continued after her discharge from the Army (Tr. 1578-79), and that he continued to rape and beat her for several years until he was incarcerated (Tr.1563, 1579). Plaintiff alleges that as a result of her history of physical and sexual abuse, she suffers from severe PTSD and depression. Tr. 1554-64, 1576-80.
Since her discharge from the military, among other symptoms, Plaintiff reports to have suffered from extreme social isolation, flashbacks, nightmares, poor memory, and difficulty concentrating. Tr. 1578-79. Plaintiff fears being around men due to her PTSD, which she claims has prevented her from keeping consistent work for outside of her own home. Tr. 185, 1577.
In November 2002, Plaintiff began attending individual and group psychotherapy sessions at the Vet Center due to her PTSD. Tr. 1669. She attended sessions at the Vet Center through approximately May 2007. Tr. 1554-1680. While at the Vet Center, Plaintiff was treated by, amongst other providers, Clinical Psychologist Greg Inman, Ph.D. Tr. 1576-80. Dr. Inman provided two letters on Plaintiff's behalf, noting that she consistently met the criteria for a diagnosis of PTSD. Tr. 1576-80.
Plaintiff was also evaluated by Jane DeVeau, M.D., of the VA Medical Center, for her mental health on September 4, 2003, and again on April 1, 2004. Tr. 18, 1684. Dr. DeVeau stated that treatment records from April 1, 2004 document Plaintiff's PTSD symptoms that interfere with her work capacity. Tr. 1681-84.
Dr. DeVeau references the 2003 and 2004 treatment records in the comments section of her July 2016 Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment. Tr. 1681-84. The court notes that the referenced documents to not appear to be included in the record of this case.
On November 27, 2002, Plaintiff applied for VA disability benefits, and on July 18, 2003, Plaintiff was deemed disabled by the VA and awarded benefits. Tr. 234-41. For the purpose of receiving VA benefits, the VA considered Plaintiff “totally and permanently disabled” and “unemployable due to [her] service-connected disabilities.” Tr. 242-48. She was deemed disabled due to “chronic low back pain, depressive disorder, and statue [sic] post right mastectomy.” Tr. 235.
From May 2007 until 2015, Plaintiff did not pursue treatment specifically to address her PTSD. At her hearing before the ALJ, Plaintiff notes that this gap in treatment was due to her moving further away from the Vet Center. Tr. 1763. She states that she was unable to tolerate the stress of driving such a far distance, especially because therapy sessions lasted late into the evening. Tr. 1763. However, in April of 2015, Plaintiff began attending individual therapy sessions with Ruby McLaughlin, MSW, LCSW. Tr. 1670-79. Plaintiff's therapy sessions with Ms. McLaughlin continued through August of 2015. Tr. 1670-79.
On July 18, 2016 and February 2, 2017, Plaintiff was again evaluated by Dr. DeVeau. Tr. 1684, 2034-47. Dr. DeVeau notes that Plaintiff suffers from chronic PTSD affecting her capacity to pursue or maintain employment. Tr. 2034-47. Dr. DeVeau provided two written statements regarding Plaintiff's PTSD: (1) a Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment (Tr. 1681-84) in July 2016, and (2) a Psychiatric Review Technique form (Tr. 2033-47) in February 2017.
B. Plaintiff's Contentions
1.Treatment of Plaintiff's Veterans Affairs disability rating
Plaintiff contends that the ALJ erred by failing to properly credit the VA finding that Plaintiff is permanently and totally disabled under Bird v. Commissioner of Social Security Administration, 699 F.3d 337, 343 (4th Cir. 2012). Pl.'s Mem. [DE-37] at 2. The court agrees.
Specifically, at issue is whether the ALJ's decision to afford the VA's disability determination “little weight” was an error. Id. at 17. Plaintiff argues that in light of the Fourth Circuit's guidance in Bird v. Commissioner of Social Security Administration, VA disability ratings are generally entitled to substantial weight. Id. at 16-17.
Bird was superseded in part by 20 C.F.R. § 404.1504 (2017), which provides that “in claims filed . . . on or after March 27, 2017, [the SSA] will not provide any analysis in our determination or decision about a decision made by any other governmental agency . . . about whether you are disabled, . . . employable, or entitled to any benefits.” Here, Plaintiff filed her claim prior to March 27, 2017. Tr. 170-76. Therefore, 20 C.F.R. § 404.1504 does not apply and Bird governs this case.
In Bird, the Fourth Circuit addresses the issue of how much weight the Social Security Administration (“SSA”) should afford to VA disability ratings. Bird, 699 F.3d at 343. The Fourth Circuit finds that “under the principles governing SSA disability determinations, another agency's disability determination ‘cannot be ignored and must be considered.'” Id. (quoting S.S.R. No. 06-03p, 2006 WL 2329939, at *6-7 (Aug. 9, 2006)). The Fourth Circuit notes that “[b]oth programs evaluate a claimant's ability to perform full-time work in the national economy on a sustained and continuing basis; both focus on analyzing a claimant's functional limitations; and both require claimants to present extensive medical documentation in support of their claims.” Bird, 699 F.3d at 343 (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)). And “[b]ecause the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency.” Bird, 699 F.3d at 343. Thus, “in making a disability determination, the SSA must give substantial weight to a VA disability rating.” Id. However, the Fourth Circuit leaves the door open for an ALJ to assign less weight to a VA disability rating in certain circumstances, stating, “an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.” Id.
In a subsequent case, Woods v. Berryhill, the Fourth Circuit clarifies what an ALJ must show to clearly demonstrate that deviation is appropriate. Woods v. Berryhill, 888 F.3d 686, 692 (4th Cir. 2018). The Fourth Circuit states that the ALJ must give “persuasive, specific, valid reasons for doing so that are supported by the record.” Id. (quoting McCartey, 298 F.3d at 1076; Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001)). Permissible reasons include, but are not limited to, the ALJ “explain[ing] which aspects of the prior agency decision he finds not credible and why, describ[ing] why he finds other evidence more credible, and discuss[ing] the effect of any new evidence made available after [VA] issued its decision.” Woods, 888 F.3d at 692. Y e t, w ithout such specific explanation, the court cannot engage in meaningful review. Id. at 692-93 (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)).
Following Bird and Woods, courts in the Eastern District of North Carolina have found that “[g]eneral differences between VA disability ratings and Social Security disability determinations are not . . . a sufficient basis for discrediting VA disability ratings.” Bennefield v. Saul, No. 5:19-CV-87-FL, 2020 WL 633106, at *3 (E.D. N.C. Jan. 21, 2020) (citing Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D. N.C. Aug. 10, 2015)); see also Smith v. Berryhill, No. 5:18-CV-65-FL, 2019 WL 848733, at *5 (E.D. N.C. Jan. 2, 2019). This is because “[s]uch differences exist in all cases, and allowing an ALJ to discount a VA disability rating for this reason would eviscerate the presumptive standard established in Bird.” Id. Indeed, if such an explanation were sufficient, an ALJ would be justified in assigning less than substantial weight to a VA rating in each and every case, contrary to the Fourth Circuit's intention in Bird.
Here, the VA determined Plaintiff to have a seventy percent combined service-connected disability as a result of her chronic low back pain, depressive disorder, and statue post right mastectomy. Tr. 234, 242. The VA found that Plaintiff's disability award was payable at a one hundred percent rate as she was deemed “unemployable due to [her] service-connected disabilities” and was “considered to be totally and permanently disabled due to [her] service-connected disabilities.” Tr. 242.
In evaluating Plaintiff's VA disability rating in her decision, the ALJ correctly acknowledges her obligation under Bird. Tr. 1697. The ALJ states that she must give “substantial weight” to a VA disability rating, unless she demonstrates that such a deviation is appropriate. Tr. 1697. Nevertheless, the ALJ determines that the VA rating should only be afforded “little weight” (Tr. 1697). In explaining this decision, the only justifications provided by the ALJ appear as follows:
In the instant case, [Plaintiff's] VA disability rating is afforded little weight, as the VA did not make a function-by-function assessment of her capabilities (i.e., determine [Plaintiff's] residual functional capacity) or determine whether she was able to perform either her past relevant work or other work.Tr. 1697.
There are two reasons provided by the ALJ for discrediting Plaintiff's VA disability rating: (1) the lack of a function-by-function assessment, and (2) the lack of a statement about whether Plaintiff can perform either past relevant work or other work. However, neither justification is satisfactory in light of Bird and Woods. Instead, both reasons provided by the ALJ are generic explanations that highlight the “general differences” that exist between SSA and VA disability standards. See Smith, 2019 WL 848733, at *5; Davis v. Berryhill, 412 F.Supp.3d 594, 599 (W.D. N.C. Sept. 16, 2019). That is, the ALJ here discredits the VA disability rating because it fails to assess Plaintiff's disability claim in the precise manner that the SSA does. As discussed above, such a generic explanation would exist in all cases and does not provide a sufficient basis for an ALJ to discredit a VA disability rating. Id. And “[i]f these differences in themselves were deemed sufficient to discount a VA disability rating decision, the presumptive standard under Bird that such decisions should be accorded substantial weight would be gutted.” Smith, 2019 WL 848733, at *5 (citing McNeill v. Berryhill, No. 5:15-CV-646-KS, 2017 WL 1050105, at *3 (E.D. N.C. Mar. 20, 2017); Nguyen, 2015 WL 5062241, at *6-7); Davis, 412 F.Supp.3d at 599.
Indeed, courts in the Fourth Circuit have held the exact justifications offered by the ALJ here to be impermissibly generic on multiple occasions. See, e.g., Bennefield, 2020 WL 633106, at *4 (finding an ALJ's explanation for assigning less than substantial weight to a VA disability rating insufficient, where the ALJ reasoned that the VA “does not make a function-by-function assessment of an individual's capacities (i.e., determine the claimant's residual functional capacity) or determine whether the claimant is able to perform either his past relevant work or other work that exists in significant numbers in the national economy”); Davis, 412 F.Supp.3d at 598 (finding an ALJ's explanation for assigning less than substantial weight to a VA disability rating insufficient, where the ALJ reasoned that “the VA does not make a ‘function-by-function assessment of a [sic] individual's capabilities,' or determine whether an individual is capable of performing either relevant past work or work that exists in significant numbers in the national economy”); Smith, 2019 WL 848733, at *5 (finding an ALJ's explanation for assigning less than substantial weight to a VA disability rating insufficient, where the ALJ reasoned that the VA “does not assess the claimant's functioning in vocationally relevant function-by-function terms”).
The explanations provided by the ALJ and Defendant also conflict with the Fourth Circuit's findings in Bird. See Davis, 412 F.Supp.3d at 598-99; Smith, 2019 WL 848733, at *6. As stated above, the ALJ justifies her decision to assign less weight to the VA rating based on the VA's failure to make a function-by-function assessment and failure to determine Plaintiff's ability to perform past relevant or other work. Tr. 1697. Defendant argues that the VA “did none of the necessary analysis the ALJ must do” and did not determine whether Plaintiff can “perform some type of acceptable work that exists in the national economy.” Def.'s Mem. [DE-46] at 16 (emphasis in original). However, the Fourth Circuit in Bird finds that both the SSA and VA disability programs “evaluate a claimant's ability to perform full-time work in the national economy on a sustained and continuing basis; [and] both focus on analyzing a claimant's functional limitations . . . .” Bird, 699 F.3d at 343 (quoting McCartey, 298 F.3d at 1076). The ALJ's justifications here do not comport with the findings in Bird.
In sum, “the ALJ [here] did not follow the requirements of Bird because the ALJ neither assigned substantial weight to the VA disability decision nor gave ‘persuasive, specific, valid reasons' for assigning less weight.” Winder v. Berryhill, No. 5:17-CV-00222-BO, 2018 WL 4179315, at *3 (E.D. N.C. Aug. 31, 2018) (citing Woods, 888 F.3d at 692; Bird, 699 F.3d at 343). Accordingly, the undersigned recommends that this case be remanded for further proceedings. On remand, it is up to the Commissioner to determine what weight to give all evidence, including the VA disability decision. However, the ALJ should sufficiently explain the any findings, consistent with Bird, so as to permit meaningful judicial review, if necessary.
2. Treatment of medical opinion evidence
In her second alleged error, Plaintiff argues that the ALJ improperly substituted her opinion for that of the medical experts, in that the ALJ assigned no significant weight to any medical opinions and presumed without substantial evidence that Plaintiff's condition dramatically improved after Plaintiff was no longer able to access psychotherapy at the Vet Center. Pl.'s Mem. [DE-37] at 1-2. In essence, the issue raised is whether the ALJ properly assigned weight to each medical opinion, and whether the ALJ's conclusions were supported by substantial evidence.
Because Plaintiff filed her claims on July 7, 2014 (Tr. 27), the applicable regulation regarding the evaluation of medical source opinions is 20 C.F.R. § 404.1527(c), entitled “Evaluating opinion evidence for claims filed before March 27, 2021.” Section 404.1527 instructs that “[r]egardless of its source, [the ALJ] will evaluate every medical opinion [it] receive[s].” 20 C.F.R. § 404.1527(c). Medical opinions are defined as “statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [their] symptoms, diagnosis and prognosis, what [they] can still do despite impairment(s), and [their] physical or mental restrictions.” Id. § 404.1527(a)(1). In evaluating medical opinions, the ALJ must “always consider the medical opinions in [a] case record together with the rest of the relevant evidence [it] receive[s].” Id. § 404.1527(b) (citing 20 C.F.R. § 404.1520b).
In general, the ALJ should assign more weight to the opinion of a source who has examined the claimant than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to the opinion of a treating source, rather than non-treating sources, such as consultative examiners. Id. § 404.1527(c)(2); see also Warren v. Berryhill, No. 4:16-CV-77-FL, 2017 WL 3326978, at *3 (E.D. N.C. July 10, 2017); Moore v. Colvin, No. 4:12-CV-189-FL, 2013 WL 5434052, at *4 (E.D. N.C. Sept. 27, 2013). “If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all the medical opinions of record, taking into account 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, (5) whether the physician is a specialist, and (6) any other relevant factors.” McCormick v. Colvin, No. 7:13-CV-00234-RJ, 2015 WL 1471269, at *7 (E.D. N.C. Mar. 31, 2015) (citing Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citation omitted)); Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D. N.C. Dec. 20, 2012) (unpublished) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)). The ALJ is not required, however, to discuss all of these factors. McCormick, 2015 WL 1471269, at *7 (citing Wa re , 2012 WL 6645000, at *2 (citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); Munson v. Astrue, No. 5:08-CV-l10-D(3), 2008 WL 5190490, at *3 (E.D. N.C. Dec. 8, 2008) (unpublished)).
While an ALJ is not obligated to accept any medical opinion, an ALJ is, however, required to explain the weight given to each opinion. McCormick, 2015 WL 1471269, at *7 (citing Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D.Va. Sept. 5, 2006) (unpublished)); see also Lamb v. Berryhill, No. 7:16-CV-397-BO, 2017 WL 5509998, at *3 (E.D. N.C. Nov. 17, 2017) (citing Mastro, 270 F.3d at 178). An ALJ may not reject medical evidence for the wrong reason or no reason. Wireman, 2006 WL 2565245, at *8. “Without . . . specific explanation of the ALJ's reasons for the differing weights he assigned various medical opinions, neither [the court of appeals] nor the district court can undertake meaningful substantial-evidence review.” David v. Berryhill, No. 7:17-CV-157-FL, 2018 WL 4664129, at *3 (E.D. N.C. Sept. 28, 2018) (quoting Monroe, 826 F.3d at 191) (alterations in original).
Here, the ALJ has not provided sufficient explanation regarding the weights, or lack thereof, assigned to the medical opinions of Dr. Inman and Dr. DeVeau such that the court can undertake meaningful review. In addition, as discussed below, each doctor provides potentially outcome-determinative information in their opinions that conflicts with the ALJ's findingsy. There may indeed be details and explanation that could reconcile the inconsistencies, however the ALJ does not provide such explanation. “Assessing the probative value of competing evidence is quintessentially the role of the fact finder. We cannot undertake it in the first instance.” Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
Plaintiff participated in individual and group therapy at the Raleigh Vet Center from November 2002 until May 2007. Tr. 1554-1680. Included in the record of this case are two letters from Dr. Greg Inman, a clinical psychologist at the Vet Center. Each letter summarizes Plaintiff's PTSD history and symptoms. The first letter is dated February 18, 2003 (Tr. 1578-80), and appears to have been provided by Dr. Inman in response to a December 24, 2002 letter from the VA (Tr. 1581), requesting Plaintiff's treatment records be included in her application for VA disability benefits. After describing in detail Plaintiff's history of PTSD, Dr. Inman concludes the letter by stating:
Mrs. Wade's symptoms continue to consistently meet those of persons with the criteria for a diagnosis of PTSD. Her symptoms seriously interfere with her socially and occupationally. Despite ongoing psychiatric treatment/medication through the Durham VA Medical Center and ongoing group and individual therapy at the Raleigh Vet Center, Mrs. Wade's PTSD symptomatology continues to make it difficult for her to maintain substantial gainful activity. We believe Mrs. Wade will
require ongoing mental health treatment well into the future and that her condition is most likely permanent.Tr. 1577.
The second letter from Dr. Inman is undated and written to Vie McDaniel at the Military Order of the Purple Heart. Tr. 1576-77. The letter begins by noting “I am responding to your request for information regarding Linda Wade . . . . Linda Wade is currently 70% service connected for PTSD and continues to have personal and professional adjustment difficulties.” Tr. 1576. The letter then summarizes Plaintiff's PTSD history and symptoms. Notably, Dr. Inman concludes that:
Ms. Wade's PTSD symptomatology continues to severely limit her both occupationally and socially, and she will require ongoing intensive outpatient treatment as well as possible periodic inpatient treatment to help her in coping with everyday life. Despite participation in individual and group therapy at the Raleigh Vet Center since December 2002, her symptoms remain resistant to change. Her prognosis is poor and it is not advisable that she return to a work environment; since even minimal levels of daily stress are likely to seriously exacerbate her condition.Tr. 1580.
On July 27, 2016, Dr. Jane DeVeau completed a form entitled Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment and it was made part of the record. Tr. 1681-84. In the comments section of the form, Dr. DeVeau states:
I have evaluated Ms. Wade on 3 occasions Sept 4, 2003, April 1, 2004, and July 18, 2016. I would encourage her legal team to obtain those records as the note dated April 1, 2004 includes a letter that documents PTSD symptoms that interfere with work capacity. Per the July 2016, reassessment Ms. Wade continues to have mood symptoms (irritability) and trauma symptoms (fear, avoidance, insomnia, impaired trust, difficulties with interpersonal collaboration) which continue to impact her capacity to work.Tr. 1684.
On February 2, 2017, Dr. DeVeau also completed a Psychiatric Review Technique form and it was made part of the record. Tr. 2033-47. In the form, Dr. DeVeau noted that Plaintiff had ongoing symptoms of chronic PTSD, including that Plaintiff “has avoided medical care due to fears and avoidance.” Tr. 2037, 2039. Dr. DeVeau assessed the functional limitations of Plaintiff, indicating that Plaintiff had mild limitation on activities of daily living; extreme difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; and, chronic episodes of decompensation, each of extended duration. Tr. 2044. In the consultant notes section of the form, Dr. DeVeau states:
I have provided psychiatric care to Ms. Wade in 2003-2004 and now again starting in [sic] July 18, 2016. In my professional opinion, Ms. Wade continues to have active symptoms of chronic PTSD which continue to impact her capacity to pursue or maintain employment. Active symptoms of emotional avoidance, impaired trust, impaired emotion regulation, anxiety, depressed mood, and bouts of insomnia continue to impact her capacity to work.Tr. 2046.
In her written decision, the ALJ gave great weight to Dr. DeVeau's opinions until May 2007. Tr. 1698. The ALJ appears to give Dr. DeVeau's findings either less or no weight following May 2007, but it is unclear exactly what, if any, weight is assigned. The ALJ's reasoning appears as follows:
In July 2016, the claimant's psychiatrist, Jane DeVeau, M.D., completed a check box form indicating that the claimant had “moderate to marked” in various aspects of the following domains: understanding and memory; sustained concentration and persistence; social interaction and adaption. Dr. DeVeau found that the claimant's symptoms had been present since September 2003 (Ex. 6F). In 2017, Dr. DeVeau also completed a form advising that the claimant continued to have chronic PTSD that impacted her capacity to maintain employment. Dr. DeVeau indicated that the claimant had extreme limitation in social interactions and marked limitations in maintaining concentration, persistence or pace (Ex. 7F). The Administrative Law Judge notes that the opinion of a treating physician is entitled to great weight and may be disregarded only if there is persuasive contradictory evidence (Coffman v. Bowen, 829 F.2d 514 (4th Cir. 1987)). Dr. DeVeau's findings are given great weight until May 2007 as the medical records reflect continuous psychiatric treatment with
abnormal mental status examination findings. However, Dr. DeVeau's opinion is not supported by the totality of evidence since May 2007, at which time the claimant did not seek psychiatric care again until 2015 and reportedly managed to keep up with daily activities during that lapse in treatment (Ex. 5F). Further, Dr. DeVeau admitted that she treated the claimant from 2003 to 2004 and not again until 2016; therefore, her opinion on the claimant's functioning during periods where she did not see the claimant are less valid.Tr. 1697-98.
The ALJ similarly gives the opinions of Dr. Inman great weight until May 2007, but appears to give either less or no weight to the opinions following May 2007. Tr. 1698. The ALJ's analysis of Dr. Inman's opinion states:
In February 2013, Lisa Carmelle, M.Ed., and Greg Inman, Ph.D., determined that the claimant's PTSD “seriously interfere[d] with her socially and occupationally” and that her symptoms remained resistant to change since December 2002 (Ex. 5F). As with Dr. DeVeau's opinion, the undersigned gives this opinion great weight for the time prior to May 2007 when the claimant had documented treatment for PTSD with consistent reports of her symptoms during that time. However, since May 2007, the claimant had no psychiatric treatment until 2015, which falls outside of the date last insured.Tr. 1698.
As stated, it is unclear what weight is assigned to the medical opinions of treating physicians Dr. DeVeau or Dr. Inman following May 2007, aside from the conclusion in Dr. DeVeau's instance that it is “less valid.” The ALJ discredits Dr. DeVeau's opinion by stating that it is not supported by the “totality of evidence since May 2007, at which time the claimant did not seek psychiatric care again until 2015 and reportedly managed to keep up with daily activities during that lapse in treatment.” Tr. 1697-98. The ALJ appears to base the decision to discredit the opinions of Dr. DeVeau and Dr. Inman primarily on Plaintiff's lack of medical records and medical treatment post-May 2007. While the record may show a lack of medical records and treatment, there is unreconciled information from Drs. Inman and DeVeau that refutes the finding that Plaintiff's PTSD ended in May 2007, and there is insufficient explanation of the weight afforded to this information. For example, among other assessments, in 2003, Dr. Inman provides “her condition is most likely permanent” (Tr. 1577), and “her symptoms remain resistant to change” (Tr. 1580). In 2016, Dr. DeVe au, the same doctor who previously provided psychiatric care to Plaintiff in 2003 and 2004, provides that Plaintiff had ongoing symptoms of chronic PTSD, including that Plaintiff “has avoided medical care due to fears and avoidance.” Tr. 2037, 2039. Collectively, Drs. Inman and DeVeau provide information regarding Plaintiff's “chronic PTSD” that is “most likely permanent” and “resistant to change” and many of the specific symptoms experienced by Plaintiff beginning in or about 2003.
Additionally, the ALJ does not address Plaintiff's proffered justification for her lack of treatment. At her hearing, Plaintiff states that the lack of treatment was not due to improvement, but instead due to moving further away from the Vet Center and being unable to tolerate driving approximately thirty-three miles to the Vet Center. Tr. 1763. Plaintiff also states that her group therapy at the Vet Center was discontinued. Tr. 1763. While the ALJ may have indeed considered and discredited Plaintiff's proffered justifications for the lack of treatment, there is no discussion or justification provided.
This overall lack of explanation is also contrary to the Appeals Council's instruction after the ALJ's initial decision was vacated in this case. Upon vacating and remanding the case to the ALJ for this decision, the Appeals Council instructed that:
The hearing decision does not identify or discuss the opinion from treating source, Greg Inman, Ph.D. (Exhibit 5F). Dr. Inman's [sic] opined in a report dated February 18, 2013, [4] that the claimant's posttraumatic stress disorder
symptomology continues to severely limit her both occupationally and socially and will require ongoing intensive outpatient treatment to help her in coping with everyday life. Dr. Inman noted that the claimant experienced frequent intrusive thoughts and flashbacks, self-isolated, and had difficulty dealing with crowded areas and being around men. Dr. Inman further noted that despite participation in individual and group therapy since December of 2002 her symptoms remain resistant to change. He concluded that her prognosis is poor and it is not advisable that she return to a work environment since even minimal levels of daily stress are likely to seriously exacerbate her condition (Exhibit 5F, pages 25-27). An evaluation of Dr. Inman's opinion is necessary.Tr. 1772-73. Despite this instruction, the ALJ here provided only a single sentence discussing Dr. Inman's opinion. Tr. 1698.
The ALJ's lack of explanation and analysis here frustrates meaningful review by the court. Based on the ALJ's brief and conclusory explanations, it is impossible to know how the ALJ discredited the opinions of treating physicians Dr. DeVeau and Dr. Inman, post-May 2007. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). The court finds that the ALJ did not provide sufficient explanation in her administrative decision so as to permit meaningful judicial review here. Accordingly, the court recommends this case be remanded for further proceedings.
3. Calculation of Plaintiff's date last insured
In Plaintiff's remaining argument, she contends that the ALJ erred by failing to adjust Plaintiff's date last insured (“DLI”), thereby failing to adjudicate Plaintiff's claim for disability benefits prior to the DLI. Pl.'s Mem. [DE-37] at 1. Specifically, Plaintiff argues it was an error by the ALJ to determine that her DLI is December 31, 2007, and consequently, only assess Plaintiff's claimed disability through that date. Id. at 9-11. Plaintiff argues that the ALJ failed to account for a “disability freeze, ” which would have extended Plaintiff's DLI to mid-2013. Id. at 10-11. Therefore, because the true DLI is mid-2013, the ALJ was also required to evaluate Plaintiff's disability through that date, which she failed to do. Id. at 11.
Defendant argues that the ALJ was correct in not applying a disability freeze to Plaintiff's DLI. Def.'s Mem. [DE-46] at 6. Defendant asserts that the ALJ did not, and could not, “establish” a “prior period of disability” under the regulations. Id. And, Defendant argues, the disability freeze cited to by Plaintiff is only applicable where a prior period of disability has been established. Id. at 6-10.
In light of the court's above recommendations to remand this matter, the undersigned does not address Plaintiff's remaining argument as the ALJ's findings on remand may be substantially different - and, therefore, may substantially impact the assessment of Plaintiff's DLI. On remand, the ALJ should consider Plaintiff's remaining argument ([see DE-37] at 9-11), and should decide whether discussion and explanation of Plaintiff's DLI is warranted. It will be incumbent on the ALJ to consider all of the evidence before her, and to explain her findings accordingly.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-36] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-45] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence. That is a matter for the Commissioner to decide.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 23, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by September 27, 2021.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).