Opinion
C/A No. 0:18-2535-MGL-PJG
09-13-2019
Darrell Wykel, 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, Darrell Wykel, 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, Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and remanded.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), 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. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(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 his past relevant work; and
(5) whether the claimant's impairments prevent him 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. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his 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. § 423(d)(2)(A); 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 August 2014, Wykel applied for DIB, alleging disability beginning April 25, 2014. Wykel's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on May 16, 2017, at which Wykel appeared and testified and was represented by Paul T. McChesney, Esquire, and Mark Dunning, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on October 23, 2017 finding that Wykel was not disabled from April 25, 2014 through the date of the decision. (Tr. 21-37.)
Wykel was born in 1965 and was forty-nine years old on his alleged disability onset date. He has a high school education and past relevant work experience as a warehouse worker. (Tr. 200.) Wykel alleged disability due to degenerative disc of the lumbar spine, inflammatory arthritis, depression, and bronchitis. (Tr. 198.)
In applying the five-step sequential process, the ALJ found that Wykel had not engaged in substantial gainful activity since his alleged onset date of April 25, 2014. The ALJ also determined that Wykel's degenerative disc disease; right knee internal derangement with tear and chondromalacia, status post-surgical repair; history of left shoulder surgery around 1998; asthma; major depressive disorder; intermittent explosive disorder; and borderline personality disorder were severe impairments. However, the ALJ found that Wykel 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 further found that Wykel retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except he can never climb ladders, ropes, or scaffolds; he can occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; he can frequently reach overhead with his left upper
extremity. He can have frequent exposure to extreme cold or heat, humidity, excessive vibration, pulmonary irritants, and workplace hazards. He is limited to simple, routine tasks performed two hours at a time and occasional interaction with the public.(Tr. 28-29.) The ALJ found that Wykel was unable to perform any past relevant work, but that considering Wykel's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Wykel could perform. Accordingly, the ALJ found that Wykel was not disabled from April 25, 2014 through the date of the decision.
The Appeals Council denied Wykel's request for review on August 19, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) 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
Wykel raises the following issues for this judicial review:
Issue 1 Opinion evidence. The ALJ must provide an accurate evaluation of the opinion evidence. In this case the ALJ made multiple errors when evaluating the opinion evidence. Where the ALJ evaluated the opinion evidence and offered reasons for the weight assigned to various opinions that were not logically or legally sound, have legal errors been committed that are not harmless?(Pl.'s Br., ECF No. 10.)
Issue 2 Failure to order a consultative examination. Wykel requested that the ALJ order a psychological consultative examination which the ALJ denied despite the facts of this case squarely warranting such an examination. Where the ALJ does not have sufficient evidence to evaluate an impairment, is it reasonable for the ALJ to deny a request for such an examination?
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. §§ 404.1513, 404.1527. Because the instant claims was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Wykel's application for benefits was filed, unless otherwise specified.
Upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to 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 Wykel's treating physician's opinion.
The law applicable to Wykel's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 404.1527(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. § 404.1527(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). Additionally, SSR 96-2p provides that an ALJ's decision "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 reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5.
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's evaluation of Dr. Victoria A. Arlauskas's opinions reads as follows:
Victoria A[r]lauskas, M.D., of Internal Medicine Westside, the claimant's treating physician, completed a questionnaire concerning the claimant on December 21, 2015 (Exhibit 7F). She stated that the claimant would only be able to do sedentary work due to his chronic back pain with degenerative disc disease and depression. She noted the claimant had seen an orthopaedic pain management specialist and had several films, which verified the disc disease. She had last seen the claimant on April 14, 2015 (Exhibit 7F). I give partial weight to this opinion, as it is not supported with relevant evidence and it is not consistent with the record as a whole (Exhibit 9F).(Tr. 35.)
Dr. A[r]lauskas then completed another statement on July 19, 2016 (Exhibit 10F). She noted that she had seen the claimant since at least 2012, the last time in February 2016, and another doctor had given him a back brace for his chronic back pain. She stated the claimant's pain pattern was consistent with his MRI from February 2016. She stated that he had trouble moving his elderly mother. She further noted knee issues for which he had seen St. Luke's. Dr. A[r]lauskas opined that his condition would limit him to sedentary work. She further noted the claimant suffered from depression and anxiety, despite being on medication. She stated that he was easily distracted; he had decreased focus; he presented as flat with depression, and at other times as anxious. Dr. A[r]lauskas then opined that it was consistent with his condition that between his pain and his mental health issues, he would suffer interruptions to concentration sufficient to frequently interrupt tasks throughout the workday (Exhibit 10F). I give partial weight to this opinion, as it is not supported with relevant evidence and it is not consistent with the record as a whole (Exhibit 9F). Furthermore, Dr. A[r]lauskas is not a mental health professional, so her opinion concerning his mental health is not part of her specialty.
Preceding this paragraph, the ALJ summarized the medical record and discussed Wykel's subjective complaints. (Tr. 29-34.) Further, the ALJ found a consultative physical examination was entitled to great weight as "it is consistent with the record as a whole. This is also consistent with the physical therapy records (Exhibit 14F)." (Tr. 35.) However, it is unclear how Dr. Arlauskas's opinions are inconsistent with and unsupported by this evidence or the clinical findings. While the Commissioner provides extensive 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). Further, Wykel has directed the court to substantial medical evidence and clinical findings that arguably support Dr. Arlauskas's opinions. (See Pl.'s Br. at 19-21, ECF No. 10 at 21-23.)
Further rendering review difficult in this matter is the ALJ's denial of Wykel's request for a psychological consultative evaluation, considering the fact that the ALJ discounted the opinion of the only examining or treating doctor who had opined on Wykel's mental limitations in part based on the fact that Dr. Arlauskas was not a mental health professional. Dr. Arlauskas's specialty is certainly a proper factor to consider in evaluating her opinion. However, the ALJ's rejection of the opined mental limitations from Dr. Arlauskas combined with the ALJ's decision to give the state agency record reviewers' opinions little weight as mental health treatment began after the agency review, renders the ALJ's determination that a psychological consultative evaluation "would be superfluous and would not add anything to the evidence already obtained" questionable. (Tr. 21.) Thus, the ALJ's evaluation of this evidence appears inconsistent. These possible discrepancies can be clarified on remand as well.
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. § 404.1527(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 that the ALJ considered all of the evidence in discounting these opinions. Therefore, the court is constrained to agree with Wykel that the ALJ's conclusory evaluation of this opinion evidence leaves the court guessing as to the support for the reasons Dr. Arlauskas's opinions were given partial weight and whether the ALJ's denial of Wykel's request for a psychological mental evaluation is supported. 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, Wykel has directed the court to substantial records that arguably support Dr. Arlauskas's opinions, and it is unclear whether the ALJ considered all of this evidence. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). 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 Dr. Arlauskas's opinions by the ALJ should necessarily lead to a finding that the opinions are entitled to additional weight or that Wykel is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
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. September 13, 2019
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).