Opinion
C/A No. 0:19-2533-RBH-PJG
10-14-2020
Kimberly Dehart, Plaintiff, v. Andrew Saul, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
[ ] Affirm [×] Reverse and Remand
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 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 the plaintiff's claims for social security benefits. Part I—Plaintiff seeks: [ ] Supplemental Security Income ("SSI")
Application date: __________ Plaintiff's age at filing: __________ [×] Disability Insurance Benefits ("DIB")
Date last insured: December 31, 2020 [ ] Other: Plaintiff's Year of Birth: 1977 Plaintiff's alleged onset date: October 29, 2015 Part II—Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge ("ALJ") to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). Part III—Administrative Proceedings Date of ALJ Decision: October 3, 2018 In applying the requisite five-step sequential process, the ALJ found: Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes [×] NoStep 2: [×] Plaintiff has the following severe impairments:
degenerative disc disease with lumbar spondylosis and radiculopathy, and carpal tunnel syndrome.Step 3: [×] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1. Step 4: Plaintiff's Residual Functional Capacity is as follows:
[ ] Plaintiff does not have a severe impairment.
[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can lift, carry, push and pull ten pounds occasionally and less than 10 pounds frequently. She can sit for six hours and stand and/or walk for two hours. The claimant can occasionally operate foot controls with the right lower extremity and can frequently balance, occasionally stoop, kneel, crouch, crawl and climb ramps and stairs. She can never climb ladders, ropes and scaffolds. The claimant must avoid concentrated exposure to unprotected heights and unprotected or dangerous moving parts and equipment.Step 5: [ ] Plaintiff could return to his/her past relevant work.
[ ] Plaintiff could not return to his/her past relevant work, but using the Medical-Vocational Guidelines ("Grids") as a framework supports a finding that Plaintiff is not disabled. 20 C.F.R. Pt. 404, Subpt. P, App'x 2.Date of Appeals Council decision: July 26, 2019 Part IV—Standard of Review
[×] Plaintiff could not return to his/her past relevant work, but there are jobs in the national economy that Plaintiff can perform, as follows:
(1) Order clerk, Dictionary of Occupational Title ("DOT") code 209.567-014, sedentary exertion, unskilled work, Specific Vocational Preparation ("SVP") 2, with 19,000 jobs in the national economy;
(2) Addressing Clerk, DOT code 209.587-010, sedentary exertion, unskilled work, SVP 2, with 30,000 jobs in the national economy;
(3) Table worker, DOT code 739.687-182, sedentary exertion, unskilled work, SVP 2, with 12,000 jobs in the national economy.
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 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). "Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains 'sufficien[t] evidence' to support the agency's factual determinations." Biestek, 139 S. Ct. at 1154 (citation omitted). 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. Part V—Issues for Judicial Review Issue 1 Residual Functional Capacity. The RFC assessment must be a reasoned assessment of all of the relevant evidence. The ALJ here failed to include significant limitations resulting from all of Dehart's impairments. Can a decision based upon an incomplete and inaccurate assessment of a claimant's RFC be supported by substantial evidence? Issue 2 Opinion evidence. The opinions of Dehart's treating specialist contain work-preclusive limitations which the ALJ improperly evaluated. Where the ALJ improperly evaluates the opinion evidence, can his decision be supported by substantial evidence?
Oral Argument
[ ] Held on __________
[×] Oral argument not necessary for recommendation
Summary of Reasons
Although Plaintiff raises two issues for this judicial review, the court finds that remand is warranted on the second issue and therefore addresses that issue first. In the second issue, Plaintiff challenges the ALJ's evaluation of the opinion evidence from her treating physician, Dr. Thomas C. Nowatka. Upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to agree with Plaintiff and recommend that this matter be remanded for further consideration and analysis by the ALJ. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence as the decision provides very little analysis as to Dr. Nowatka's second opinion, why the ALJ discounted this opinion, and even if the ALJ considered all the aspects of this opinion.
The law applicable to Plaintiff'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).
As stated above, upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the ALJ stated the following with regard to Dr. Nowatka's opinions:
In February 2016, Christian Nowatka, M.D., evaluated the claimant's alleged mental impairment. (Ex. 4F). In May 2018, Thomas Nowatka, M.D. completed a
questionnaire surrounding the claimant's impairments. (Ex. 6F). It is unclear whether the two medical sources are the same person. Nevertheless, in the May 2018 assessment, it noted that the claimant would be absent "about four times a month" as a result of her impairments. (Ex. 6F). The undersigned assigns moderate weight to the opinion noted during the February 2016 evaluation and partial weight to the May 2018 evaluation. Based on the evaluation of the record, Dr. Nowatka, in the 2016 evaluation notes that the claimant's anxiety disorders are being controlled with medication and no psychiatric treatment was recommended. (Ex. 4F / 3). Dr. Nowatka's findings are generally consistent with the medical record, which showed no difficulty with any of her alleged psychiatric conditions. (Ex. 1F / 6, 19, 23, 27 "seldom," 37 "seldom," 47; Ex. 4F / 14 no endorsement of "memory lapses or changes or difficulty finding desired words;" Ex. 5F / 6; Ex. 7F / 7; Ex. 3F / 17; Ex. 1F / 7). In contrast, however, there is little evidence to substantiate absenteeism in the amount of four times a month due to the claimant's mental impairment as was subsequently opined by Dr. Nowatka in 2018.(Tr. 21.) However, as pointed out by Plaintiff, Dr. Nowatka's May 2018 opinion contained numerous other opined limitations in addition to his opinion that Plaintiff would be absent four times per month. For example, Dr. Nowatka checked boxes indicating that Plaintiff's "symptoms/limitations were present to such a degree that it would distract [her] in job settings and elsewhere and impair her ability to perform daily activities and work"; that her "symptoms/restrictions were likely to increase with physical activity"; that she "required frequent rest periods"; and that she would "sometimes need to take unscheduled breaks during an eight-hour work day." (Tr. 436-37.)
The parties do not appear to dispute that these opinions are from the same provider.
The ALJ appears to have discounted Dr. Nowatka's May 2018 opinion without discussion or explanation as to some of the opined limitations and without explaining how these opinions are inconsistent with and unsupported by the evidence or the clinical findings. The Commissioner argues that the record is inconsistent with Dr. Nowatka's opinion that Plaintiff's diagnoses would cause her to experience symptoms that would limit her ability to perform substantial gainful activity and provides some argument and possible factual support for this conclusion; however, 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, the Commissioner does not address the ALJ's failure to address these opined limitations.
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 whether the ALJ applied the requisite factors, whether he considered the entirety of Dr. Nowatka's May 2018 opinion, and which aspects of the evidence the ALJ believed would support his determination that this opinion was entitled to partial weight. Therefore, the court is constrained to agree with Plaintiff that the ALJ's conclusory evaluation of the opinion evidence leaves the court guessing as to the support for the reasons this opinion was given partial weight, and even if the ALJ considered the entire opinion. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Moreover, where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence.
Accordingly, the court expresses no opinion as to whether further consideration of the opinion evidence by the ALJ should necessarily lead to a finding that the opinions at issue are entitled to additional weight or that Plaintiff is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Plaintiff's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Plaintiff may present her remaining argument concerning the ALJ's alleged errors on remand.
RECOMMENDATION
It is recommended that this matter be
[ ] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[×] Reversed and remanded pursuant to [×] Sentence Four [ ] Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[ ] Reversed and remanded for an award of benefits.
October 14, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).