Opinion
Civil Action No. 5:17-2443-RMG-KDW
01-03-2019
Richard Joseph Bilton, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action.
I. Relevant Background
A. Procedural History
On February 20, 2015, Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging he became disabled on December 16, 2014. Tr. 206-07. After being denied initially, Tr. 106, and at the reconsideration level, Tr. 127, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 144-45. ALJ John T. Molleur conducted an administrative hearing on March 22, 2016, taking testimony from Plaintiff and vocational expert ("VE") Art Schmitt. Tr. 44-89. The ALJ denied Plaintiff's claim in a decision dated June 28, 2016. Tr. 18-34. Plaintiff requested review of the decision from the Appeals Council seeking dire need case processing because his house was in foreclosure. Tr. 1-17. On August 19, 2016, the Appeals Council denied the request for review making the ALJ's June 28, 2016 decision the Commissioner's final decision for purposes of judicial review. Tr. 9. After granting Plaintiff an extension of time to file a civil action, Tr. 1, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed September 13, 2017. ECF No. 1.
The Application Summary for DIB is dated April 22, 2015 and notes an application completion date of February 25, 2015. Tr. 206. However, as noted on the Disability Determination and Transmittal, Plaintiff's filing date is February 20, 2015. Tr. 106.
B. Plaintiff's Background
Plaintiff was born in September 1970, and was 44 years old as of his alleged onset date of December 16, 2014. Tr. 256. In his Disability Report-Adult Plaintiff indicated that he completed the 11th grade and did not complete any type of specialized job training, trade or vocational school. Tr. 261. Plaintiff identified his past relevant work ("PRW") as co-owner and owner of a car dealership. Tr. 262. Plaintiff indicated he stopped working on December 16, 2014, because of his medical conditions and his conditions caused him to make changes in his work activity on June 1, 2013. Tr. 261. Plaintiff identified his medical conditions as: severe depression, intestine/bladder/testicle issues, high blood pressure, asthma, pancreatitis, panic disorders/anxiety, diabetes, ADHD, restless legs/sleep apnea, and chronic sweating. Tr. 260.
In a Disability Report-Appeal dated August 10, 2015, Plaintiff's attorney indicated that as of June 2015 Plaintiff's depression and testicular pain had worsened and his white blood cell and platelet levels had decreased. Tr. 301. Also noted was a new medical condition of "Edema in Ankles" that occurred the same date. Id. The following information was noted as changes in Plaintiff's daily activities due to physical or mental conditions:
Can sit for approximately 15 minutes and stand in one place for approximately 30 minutes due to pain in feet, Difficulty walking due to Shortness of Breath, Claimant has to have help with household chores, grocery shopping, and yardwork due to shortness of breath and swelling, Does not drive due to health
conditions, Difficulty with memory, states that he is forgetful, Difficulty interacting with people and being in public places, states that he dislikes being in crowds, leaves his home only to go to physicians appointments, claimant states that he sleeps most days.Tr. 306.
C. The Administrative Hearing
The administrative hearing was held on March 22, 2016 before ALJ Molleur in Charleston, South Carolina. Tr. 44. Plaintiff appeared with counsel; VE Schmitt also appeared and testified. Id.
1. Plaintiff's Testimony
In response to questioning from the ALJ Plaintiff testified that he lived with his wife and two teenaged children both of whom had ADHD but functioned independently. Tr. 53. Plaintiff stated that his wife recently started working outside the home, and she had a second job with Lakeside Animal Hospital where she has worked part-time for the past 27 years. Id. Plaintiff testified that he completed the 11th grade and did not obtain his GED. Tr. 54. Plaintiff stated that he "grew up in the automobile business" and in 1985 he started working for his family-owned dealership when he was 15 years old. Id. Plaintiff stated that he worked in that business until it was sold in 2009. Id. Plaintiff testified that he started work washing cars and he ended up as a general manager with 60 employees and owning ten percent of the business. Tr. 54-55. The other percentages of the business were held by Plaintiff's father (60%), uncle (20%), and brother (10%). Tr. 55. Plaintiff testified that after the business was sold he worked for the new owner for "about three months" and in 2011 went into a 50/50 partnership in a car lot with a different individual. Id. Plaintiff worked with this partner from November 2011 until June 2013 when they "had a falling out" and Plaintiff opened his own car lot. Tr. 56. Plaintiff testified that he operated the new business with his wife from August 2013 until December 16, 2014 when he "just couldn't handle it anymore." Id. Plaintiff stated the business closed and his wife "wrapped everything up" in February 2015. Tr. 57. The ALJ asked Plaintiff about a treatment note that indicated he was working in April 2015. Tr. 57-58. Plaintiff stated that he was not working during that time although he was drawing disability payments for six months through an insurance policy. Tr. 58-59. Plaintiff testified that he had not yet filed tax returns for 2014 and 2015 but had requested extensions. Tr. 59. The ALJ indicated he would keep the file open for 14 days and requested copies of the extensions Plaintiff obtained from the IRS. Tr. 60.
In response to questions from his attorney Plaintiff testified that the problems he was having leading up to his decision to stop working were "mental loss and just couldn't even remember pretty much what [he] was, what [he] had done, what [he] done [sic] with paperwork, figures that [he] had given people." Tr. 60. Plaintiff affirmed that he was having problems remembering conversations he had with customers and keeping up with office paperwork. Id. Plaintiff testified that in September 2015 he began to be unable to complete a full day of work and he would go home and lie down. Tr. 61. Plaintiff testified that he sometimes would be able to return to work but other times his father and wife would have to stay and run the car lot. Id. Plaintiff stated that he was seeing Dr. Constance Alexander for his depression and they were trying different medications. Id. Plaintiff testified that after trying seven or eight different medications they decided to try transcranial brain stimulation. Id. Plaintiff testified that he took that treatment for eight weeks but it helped "very little." Tr. 61-62. Plaintiff stated that his symptoms include memory loss and no energy and doctors determined that his "white blood cell count was way below normal." Tr. 62. Plaintiff testified that he was having problems with focus and concentration and with the ability to finish things that he had started. Id. Plaintiff stated that his symptoms have "gotten worse in the last three months." Id. Plaintiff stated that he used to drive his children to school but now he may just get them up in the morning and then go back to bed. Tr. 63. Plaintiff stated that he no longer drives and he has stopped doing yard work. Id. Plaintiff stated that his wife or his father would drive him to Mount Pleasant for the transcranial treatments. Id. Plaintiff indicated that doctors wanted him to return for another session. Id. Plaintiff testified that the treatments did not help him enough to return to work but he "could go outside and maybe walk around the yard and let [his] dog out a minute. Maybe blow the driveway off or something." Tr. 64. Plaintiff testified that he is still having bad days when he will start crying for no reason. Id. Plaintiff testified that he is currently taking 11 medications, most of them for mental issues. Id. Plaintiff testified that he has problems with sleep apnea and hypertension and has dizziness "[e]veryday just about." Tr. 65. Plaintiff attributed his dizziness to his medications. Id. Plaintiff stated that he experiences dizziness "at least four or five days a week" and some days the episodes last 15-20 minutes and some days the episodes last for hours. Id. Plaintiff stated that he has crying spells "at least three days a week." Tr. 66. Plaintiff testified that he sleeps 14 hours a day or longer and he is "up and down at night" to use the bathroom. Id. Plaintiff stated that he goes to bed at 9:30 p.m., wakes up at 7:00 a.m. to help his wife wake up the children, and then goes back to bed and goes to sleep. Tr. 67. Plaintiff stated that he is sleeping so much because of the depression, not because of his medications. Id. Plaintiff stated that he does not help with getting the children up every day and there are some days when he will "sleep right through." Id. Plaintiff testified that on the days he gets up at 7:00 he does not get dressed; he remains in his pajamas. Tr. 68. Plaintiff testified that he is sometimes able to do household chores "but not very many times it gets accomplished." Tr. 69. Plaintiff stated that he is unable to focus enough to watch a movie on TV and noted that due to lack of money the family no longer has TV. Id. Plaintiff stated that he does not read books and noted that he was diagnosed with ADHD when he was an adult and put on medication. Tr. 69-70. Plaintiff stated the medication gives him a little energy but he did not feel that it helped him to focus. Tr. 70. Plaintiff confirmed that he still struggles with memory issues. Id. Plaintiff indicated that he has problems with pancreatitis. He also indicated that he stopped drinking alcohol in 2009. Id. Plaintiff confirmed that he still has abdominal pain and discomfort. Tr. 71. Plaintiff testified that he was put on opiate medication for restless leg syndrome and he became addicted to the pills. Id. Plaintiff stated that he went to the hospital "for depression and for the pills, but mainly for depression." Tr. 72. Plaintiff testified that he would be unable to work an eight-hour day doing any type of work because he would be unable to focus for any period of time. Id. Plaintiff stated that he stays in bed because of the depression. Id. Plaintiff stated that he had job offers but felt he could not do them. Tr. 73. Plaintiff recounted an incident when his wife went out of town for a few days and he was unable to care for his children and during her absence he "may have eaten two or three peanut butter and jelly sandwiches." Tr. 73-74.
Transcranial magnetic stimulation, or TMS, is a noninvasive form of brain stimulation. TMS devices operate completely outside of the body and affect central nervous system activity by applying powerful magnetic fields to specific areas of the brain that [ ] are involved in depression.
Approximately 50% to 60% of people with depression who have tried and failed to receive benefit from medications experience a clinically meaningful response with TMS. About one-third of these individuals experience a full remission, meaning that their symptoms go away completely. It is important to acknowledge that these results, while encouraging, are not permanent. Like most other treatments for mood disorders, there is a high recurrence rate. However, most TMS patients feel better for many months after treatment stops, with the average length of response being a little more than a year.
TMS therapy is an intensive treatment option requiring sessions that occur five days a week for several weeks. Each session may last anywhere from 20 to 50 minutes, depending on the device and clinical protocol being used. . . . Though one session may be enough to change the brain's level of excitability, relief isn't usually noticeable until the third, fourth, fifth, or even sixth week of treatment. See https://www.health.harvard.edu/blog/transcranial-magnetic-stimulation-for-depression-2018022313335 (last visited Jan. 2, 2019).
The ALJ asked Plaintiff who had offered him work and he testified a "conversion company." Tr. 74. He stated that the company takes new cars and converts them "into high performance cars or lifted trucks and stuff." Tr. 75. Plaintiff stated that he had emailed the company asking about tires and wheels taken off cars and the owner called him because he needed a sales person. Id. Plaintiff stated that he told the owner he was about to go on a family vacation and that he would let him know when they got back. Id. Plaintiff testified that the conversation took place in May or June of 2015 and he had contacted the company because he "needed a set of tires for one of my cars that has now gotten repossessed." Id. Plaintiff also stated that one year earlier he had been offered a job to work at the car dealership that his father leased to another individual but Plaintiff felt unable to do the work. Tr. 76. Plaintiff stated that he did not think he could work for even a couple of days a week. Tr. 76-77. Plaintiff stated the family vacation was to Tavi Island, Georgia. Tr. 77.
In response to questions from his attorney Plaintiff testified that during that vacation he stayed in the room most of the time. Tr. 77. Plaintiff stated that his wife packed for the trip but that he loaded the car. Tr. 78. The ALJ asked if it was on that trip when he was rushed to the hospital because he was in the sun on the beach the entire week and was sunburned. Id. Plaintiff stated that he went to the hospital when he got back because his ankles had swollen from fluid. Plaintiff stated that if he got sunburned it was when he "may have been riding on the golf cart to get to lunch or something one day." Id. In response to his attorney Plaintiff stated that his mother-in-law and his brother-in-law paid for the trip and even if he did not want to go on the trip his wife would not have left him home alone. Tr. 79. Plaintiff testified that in the past he had tried to harm himself and hoped they would hurry and get something done with the transcranial treatment because his medications were not working. Id. Plaintiff stated that his wife had called to have his hearing date "sped up" because his house was going into foreclosure. Tr. 79-80.
The ALJ asked about an exhibit in the record from the summer of 2015 that reported "an episode of sunburn after being on the beach all week . . . with some confusion." Tr. 80. The ALJ asked if that was the trip to Tavi Island and Plaintiff responded that he did not go on the beach at Tavi Island but he got sunburned after an hour while on a kayaking trip with his wife. Id. The ALJ asked if part of the reason he stayed in the room was because of the sunburn and Plaintiff responded that the reason he stayed in was "just the depression." Id.
2. VE's Testimony
Dr. Art Schmitt testified as the VE and identified Plaintiff's past work as "Owner, car sales . . . DOT of 185.167-046, SVP:7, skilled, light. Detailer, DOT of 915.687-034, SVP:2, unskilled, medium . . . ." Tr. 82. The ALJ clarified with Plaintiff his work as a detailer, sales manager, and general manager. Plaintiff testified that he was the general manager from 2005 to 2009 and was the used car sales manager from 1993. Tr. 83. The VE testified there would not be a separate DOT number for the used car manager and owner. Id. Plaintiff testified that he went to auctions and bought all of the inventory and that is how he became well-known in the car business. Id.
The ALJ posed the following hypothetical to the VE:
Let's assume a person of Claimant's age, education and work background. Such a person is limited to only light work as defined in the regulations. He's able to climb ropes, ladders or scaffolds only occasionally. . . . Other postural activities [are] limited to frequent. There should be no more than occasional exposure to extremes of cold. There should be no direct exposure to vibrations. Work is restricted to involving no more than occasional decision making or changes in the work setting.Tr. 84. The ALJ asked if such an individual could perform Plaintiff's past work and the VE responded in the negative. Id. The ALJ asked if there was any unskilled work such a person could perform. The VE responded affirmatively and identified the following jobs: storage facility clerk, DOT 295.367-026, SVP:2, unskilled, light, 4,400 jobs in South Carolina, 416,000 jobs nationally; ticket taker, DOT 344.667-010, SVP:2, unskilled, light, 1,260 jobs in South Carolina, 104,000 jobs nationally; and coupon redemption clerk, DOT 290.477-010, SVP:2, unskilled, light, 200 jobs in South Carolina, 14,700 jobs nationally. Tr. 84-85. The VE confirmed this was a representative and not exhaustive list. Tr. 85.
The ALJ asked the VE to further assume that the individual is limited to only sedentary work with the same restrictions as in the first hypothetical but with the additional restriction of "no more than brief and incidental contact with members of the general public." Tr. 85. Plaintiff interjected that he "did that every day. Not a problem." Id. The ALJ also noted that there would be "no tandem work or other work in close coordination with others, although he can tolerate proximity to others in the work setting." Id. The ALJ asked if there was unskilled work the person could perform and the VE identified the following positions:
Surveillance system monitor, SVP:2, unskilled, sedentary, DOT of 379.367-010, 550 in South Carolina, 74,400 nationally. Weight tester, DOT of 539.485-010, SVP:2, unskilled, sedentary . . . . 8,800 in South Carolina, 430,000 nationally. Car wash attendant, DOT of 915.667-010, SVP:2, unskilled, light, 1,126 in South Carolina, 202,000 nationally.Id. The VE testified this was a representative list. Tr. 86. The ALJ asked the VE to "assume further that such a person due to chronic fatigue, pain, inability to sustain focus or any other complication arising from his diagnosed conditions or any other combination thereof, would be expected to be off task on the average of 60 to 90 minutes per day over and above scheduled breaks." Id. The ALJ asked if the person would be able to perform any of the jobs identified or any other work in the national economy; the VE responded the person could not work at the listed jobs or at any of Plaintiff's past work and would be unemployable. Id. The ALJ asked "if for similar reasons such an individual would be absent in the aggregate of two to three days per month on an unscheduled basis, would such a person be able to perform any of the jobs you've listed or any of the work in the national economy?" Id. The VE testified that in his opinion, the hypothetical person would be unemployable. Id. The VE confirmed his testimony was consistent with the DOT. Id.
Plaintiff's counsel asked the VE if it would be permissible in the workplace if the individual had to leave work early two to four days a month. Tr. 86. The VE testified that in his opinion "there would not be an employer that would tolerate that and he'd be unemployable." Tr. 87.
Counsel had no further questions for the VE and gave a brief closing statement regarding Plaintiff's credibility and arguing for approval of disability with review in one or two years to determine if the right medications have helped Plaintiff enough so that he can function. Tr. 87-88.
II. Discussion
A. The ALJ's Findings
In his June 28, 2016, decision the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2015.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of December 16, 2014 through his date last insured of December 31, 2015 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: opiate dependence, major depressive disorder versus bipolar disorder, attention deficit disorder, general anxiety disorder, degenerative disc disease of the lumbar spine, chronic pain syndrome, and chronic pancreatitis (20 CFR 404.1520(c)).Tr. 23-24, 26, 32-34.
4. Through the date last insured, the claimant 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 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). Specifically, the claimant could lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. He could sit for 6 hours in an 8-hour day, and stand and/or walk for 6 hours in an 8-hour day, with normal breaks. The claimant could only occasionally climb ropes, ladders and scaffolds, and he could frequently perform other postural activities. The claimant could have no more than occasional exposure to extremes of cold, and he could have no more than direct exposure to vibrations. Additionally, the claimant was limited to no more than occasional decision-making or changes in the work setting.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on September 17, 1970 and was 45 years old, which is defined as a younger individual age 18-49, on the date last insured (20 CFR 404.1563).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from December 16, 2014, the alleged onset date, through December 31, 2015, the date last insured (20 CFR 404.1520(g)).
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are "under a disability," defined as:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. See Vitek v. Finch, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff argues that the ALJ erred in the following ways: (1) by according "little weight" to the opinion of his treating psychiatrist Dr. Alexander; (2) by failing to consider the impact of his need for frequent medical treatment on his ability to sustain work activities on a regular and continuing basis; and (3) by finding his allegations "not entirely consistent" based on selective citation to evidence. Pl.'s Br. 1, ECF No. 14. Plaintiff also seeks remand under sentence six of 42 U.S.C. § 405(g) in light of "new and material opinion evidence" from Dr. Alexander. Id.; see also Motion for Sentence Six Remand, ECF No. 15.
1. Evaluation of Opinion Evidence
Plaintiff's alleges that the "ALJ's reasons for according 'little weight' to the opinion of Dr. Alexander, [his] longtime treating psychiatrist, are not supported by substantial evidence." Pl.'s Br. 21. The Commissioner contends that substantial evidence supports the ALJ giving greater weight to the opinions of other physicians and "the ALJ reasonably discounted Dr. Alexander's form (Tr. 31-32)." Def.'s Br. 11-12, ECF No. 20.
Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. § 404.1527(b). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). Statements that a patient is "disabled" or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). "However, opinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner." Id. at *3.
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 404.1527 is applicable.
a. Opinion of Dr. Constance Alexander
On March 29, 2016, Dr. Alexander completed a Mental Residual Functional Capacity Form noting that she had been treating Plaintiff since April 22, 2014. Tr. 973-76. She indicated that Plaintiff's current diagnoses were opiate dependence, major depressive disorder recurrent versus bipolar disorder, attention deficit disorder, and general anxiety disorder, each of which was first diagnosed on April 22, 2014. Tr. 973. Dr. Alexander check-marked the following signs and symptoms applicable to Plaintiff: anhedonia or pervasive loss of interest in almost all activities; sleep disturbance; decreased energy; feelings of guilt or worthlessness; difficulty concentrating or thinking; thoughts of suicide; generalized persistent anxiety; and autonomic hyperactivity. Id. She indicated the following symptoms were "present": deficiencies in concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner; and repeated episodes of deterioration or decompensation in work or work-like settings which cause the patient to withdraw from the situation or experience exacerbation of signs and symptoms. Dr. Alexander indicated the following symptom was "absent": complete inability to function independently outside the area of the patient's home due to panic attacks. Tr. 974. She noted that in the past Plaintiff had abused drugs or alcohol but was not currently abusing drugs or alcohol. Id.
With regard to work limitations due to psychiatric state, Dr. Alexander noted that Plaintiff was "moderately impaired" in his ability to carry out very short and simple instructions, to work in coordination with and proximity with others without being distracted by them, to make simple work-related decisions, to ask simple questions or request assistance, to accept instructions and respond appropriately to criticism from supervisors, to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, to respond appropriately to changes in the work setting, to be aware of normal hazards and take appropriate precautions, and to travel in unfamiliar places or use public transportation. Tr. 975-76. She indicated Plaintiff was "markedly impaired" in the ability to remember locations and work-like procedures, to understand and remember short and simple instructions, to understand and remember detailed instructions, to sustain an ordinary routine without special supervision, and to interact appropriately with the general public. Tr. 975. Dr. Alexander indicated Plaintiff was "extremely impaired" in his ability to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and to set realistic goals or make plans independently of others. Tr. 975-76. Dr. Alexander's written comments were as follows:
The patient has required constant re-direction from his wife to do even menial tasks. He often decompensates and stays in the bed when she is not around to help him. He is unable to work in any capacity at this time. He has been tried on numerous psychiatric medications and has undergone TMS at MUSC for mood stabilization, all with no significant improvement in symptoms.Tr. 976.
b. ALJ's Consideration of Dr. Alexander's Opinion
The ALJ considered Dr. Alexander's March 2016 opinion and determined that "to the extent she has opined the claimant has greater limitations than those set forth above, those opinions have been given little weight." Tr. 31. The ALJ found that "Dr. Alexander's opinions are not supported by her own treatment notes, which document the claimant's subjective reports of depression but do not reflect any significant objective abnormalities." Id. The ALJ cites as examples Dr. Alexander's December 2015 and January 2016 treatment notes that Plaintiff's psychiatric symptoms were stable, and to Plaintiff's December 2015 request for an increase in his Zyprexa because it was stabilizing his mood. Citing to Dr. Alexander's note in January 2016 the ALJ states that Plaintiff reported his "overall mood was somewhat better, and while he continued to report some ongoing depressive symptoms, no objective abnormalities were documented. Dr. Alexander again noted the claimant's condition was stable." Tr. 31-32. The ALJ noted that Dr. Alexander's treatment notes do not reflect any concentration deficits, nor have other examiners documented any concentration abnormalities. Tr. 32. The ALJ concluded that "because Dr. Alexander's opinions are not supported by her own treatment notes or the other examination findings, they have been given little weight." Id.
In his RFC assessment the ALJ limited Plaintiff "to no more than occasional decision-making or changes in the work setting." Tr. 27.
c. Discussion
Generally, the opinions of treating physicians are entitled to greater weight than other evidence and the regulations have enumerated particular factors for ALJs to consider when evaluating those opinions. See 20 C.F.R. § 404.1527(c). If a treating source's medical opinion is "well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight[.]" SSR 96-2p; see also 20 C.F.R. § 404.1527(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record). 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); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding a physician's opinion should be accorded "significantly less weight" if it is not supported by the clinical evidence or if it is inconsistent with other substantial evidence). The ALJ has the discretion to give less weight to the opinion of a treating physician when there is "persuasive contrary evidence." Mastro v. Apfel, 270 F.3d, 171, 176 (4th Cir. 2001). The regulations provide that if a treating source's opinion is not accorded controlling weight, the ALJ should consider "all of the following factors" in order to determine the weight to be accorded to the medical opinion: examining relationship; treatment relationship, including length of treatment relationship, frequency of examination, and nature and extent of treatment relationship; supportability; consistency with the record as a whole; specialization of the medical source; and other factors. 20 C.F.R. § 404.1527(c); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). The rationale for the general rule affording opinions of treating physicians greater weight is "because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant." Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)).
SSR 96-2p was rescinded effective March 27, 2017 for claims filed on or after March 27, 2017 because of revisions to the final rules including that "adjudicators will not assign a weight, including controlling weight, to any medical opinion for claims filed on or after March 27, 2017." See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 96-2p is applicable. --------
While an ALJ is under no obligation to accept any medical opinion, he must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). "'[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ 'give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity." Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015). However, opinions reserved to the Commissioner must still be evaluated and accorded appropriate weight. SSR 96-5p, 1996 WL 374183, at *3. "When, as here, an ALJ denies a claimant's application, the ALJ must state 'specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision." Sharp v. Colvin, 660 F. App'x 251, 257 (4th Cir. 2016). In Sharp, the Fourth Circuit determined that the "ALJ did not summarily conclude that [the doctor's] opinion merited little weight" because the ALJ explained why he discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id.
Here, as required by SSR 96-2p, the ALJ's decision contained specific reasons for the weight given to Dr. Alexander's opinion—her treatment notes do not reflect objective abnormalities. However, the undersigned is unable to "identify clearly" the ALJ's reasoning. The ALJ cites to treatment records in December 2015 and January 2016 wherein Dr. Alexander noted that Plaintiff's condition was "stable." Tr. 31. Plaintiff argues that this observation "does not bear on the severity of the condition, but simply means that the condition has not changed." Pl.'s Br. 24-25. The Commissioner contends that the ALJ's reference to Plaintiff's stable condition means that "the ALJ found that Plaintiff presented without any documented significant objective abnormalities, and was 'stable'—i.e., not changed—through the end of the relevant period." Def.'s Br. 14. Dr. Alexander's treatment notes provide the choices of "stable," "improving," and "worsening" in describing Plaintiff's condition. Tr. 723-24. The undersigned notes that the ALJ does not reference the November 2015 treatment note that indicated Plaintiff's condition was "worsening." Tr. 725. Also, the ALJ does not explain how his cited examples of Plaintiff's "stable" condition reflect a lack of objective abnormalities when in both of these treatment notes Dr. Alexander describes Plaintiff's objective impairments of opiate dependence, major depressive disorder recurrent versus bipolar affective disorder, and attention deficit disorder. Tr. 724-25.
The ALJ also cites to the report of the consultative examiner in November 2015 that determined Plaintiff was able to understand and carry out simple instructions without difficulty during the examination, and stated that Plaintiff's concentration for simple tasks appeared adequate. Tr. 32. In her March 2016 opinion Dr. Alexander noted that Plaintiff was moderately impaired in his "ability to carry out very short and simple instructions" and markedly impaired in his "ability to understand and remember short and simple instructions." Tr. 975. The ALJ does not explain how the ability to carry out simple instructions during a one-time examination conflicts with Dr. Alexander's opinion regarding these limitations in a work setting.
Furthermore, it is not clear to the undersigned that the ALJ considered all of the pertinent factors in 20 C.F.R. § 404.1527(c)—examining relationship; treatment relationship, including length of treatment relationship, frequency of examination, and nature and extent of treatment relationship; supportability; consistency with the record as a whole; and specialization of the medical source. The Fourth Circuit has held that it is not necessary for an ALJ to recite each factor concerning weight, as long as the "order indicates consideration of the all pertinent factors." Burch v. Apfel, 9 F. App'x 255, 259 (4th Cir. 2001). Here, while the ALJ notes Dr. Eads's "treating relationship with the claimant" and consulting examiner Dr. Fishburne's "expertise in psychology," Tr. 31, nowhere in his decision does he note that Dr. Alexander was Plaintiff's treating psychiatrist, cite to her expertise in psychiatry, or note the length and frequency of her examinations of Plaintiff.
Having reviewed the record evidence, the undersigned finds that remand for further consideration of Dr. Alexander's opinion is appropriate. The ALJ should be required to fully discuss all aspects of the opinion and discuss the weight attributed to it based on the factors set forth in 20 C.F.R. § 404.1527. In making this recommendation, the undersigned is mindful that it is not to weigh evidence or substitute its judgment for that of the Commissioner, but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays v. Sullivan, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied); DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) ("Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator."); Jordan v. Califano, 582 F.2d 1333, 1335 (4th Cir. 1978) ("A bald conclusion, unsupported by reasoning or evidence, is generally of no use to a reviewing court [.]"); Arnold v. Sec'y of H.E.W., 567 F.2d 258, 259 (4th Cir. 1977) (noting that, unless Commissioner "has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.") (internal quotation omitted).
The undersigned cannot find the Commissioner's decision is based on substantial evidence because the ALJ has not explained adequately the contradictions or inconsistencies between Dr. Alexander's opinion and her own treatment notes or the report of the consulting examiner. Remand for further consideration of Dr. Alexander's opinion is recommended. Additionally, Plaintiff moved for remand based on "new and material evidence" from Dr. Alexander. ECF No. 15. Because the undersigned recommends remand for review of Dr. Alexander's 2016 opinion, the additional evidence may raise a question as to whether the ALJ's decision regarding that opinion is supported by substantial evidence. Accordingly, the case should also be remanded so that the ALJ can consider the evidence submitted by Plaintiff.
2. Plaintiff's Remaining Allegations
Plaintiff also claims the ALJ failed to consider the impact of his need for frequent medical treatment on his ability to work and that the ALJ erred in evaluating Plaintiff's credibility. Because the undersigned recommends remand, detailed analysis of these other allegations of error is not possible at this point. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on a particular ground and declining to address claimant's additional arguments). Accordingly, the undersigned does not consider Plaintiff's remaining allegations of error at this time. However, upon remand the ALJ should also consider these issues.
III. Conclusion and Recommendation
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action as detailed within. For the reasons set out within, it is further recommended that Plaintiff's Motion for Sentence Six Remand, ECF No. 15, be granted.
IT IS SO RECOMMENDED. January 3, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge