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explaining that while much of the ALJ's discussion of the medical record took place elsewhere in decision, "that does not undermine the ALJ's compliance with [20 C.F.R. §§ 404.1527(c) and 416.927(c)]"
Summary of this case from Dawson v. SaulOpinion
C/A No. 2:17-cv-02280-MGL-MGB
01-28-2019
WALTER COREY GORDON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Walter Corey Gordon ("Plaintiff'), through counsel, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was born June 19, 1981, and was 31 years old on his amended alleged onset of disability date, February 10, 2013. (R. 720, 735.) Plaintiff claims disability due to, inter alia, costochondritis, asthma, fibromyalgia, lumbar degenerative disc disease, depression, and anxiety. (R. at 722.) Plaintiff has past relevant work as a certified nurse assistant and crane operator. (R. at 735.)
Plaintiff filed for DIB and SSI on October 4, 2013. (R. 194, 196.) His application was denied initially and on reconsideration. (R. 136-40, 142-49.) Following a hearing, Administrative Law Judge (ALJ) Edward T. Morriss denied Plaintiff's claim on January 12, 2015. (R. 21-31.) The Appeals Council denied Plaintiff's request for review, (R. at 1-4), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
Thereafter, Plaintiff filed an action in the United States District Court for the District of South Carolina. Gordon v. Comm'r of Soc. Sec., D.S.C. Civil Action No. 2:15-2814-MGL. On January 26, 2017, the District Court remanded the action for further proceedings consistent with its Order (R. at 850-62); Gordon, No. 2:15-cv-2814-MGL. Following the District Court's Order, the Appeals Council vacated the ALJ's June 10, 2010 decision and remanded the matter to the ALJ. (R. at 672-75.)
On May 10, 2017, ALJ Morriss held a second hearing. (R. at 720.) On August 23, 2017, ALJ Morriss issued a decision finding Plaintiff was not disabled under the Act from February 10, 2013 through the date of his decision. (R. at 720-36.) It appears that Plaintiff did not file exceptions with the Appeals Council and instead filed this action on August 25, 2017. In making the determination that the Plaintiff is not entitled to benefits, the Commissioner adopted the following findings of the ALJ's January 12, 2015 decision (R. 720-36):
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2015
(2) The claimant has not engaged in substantial gainful activity February 10, 2013, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: costochondritis, asthma, fibromyalgia, lumbar degenerative disc disease, depression, and anxiety (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).(R. at 720-36.)
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. He can 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. He can frequently climb ramps and stairs, stoop, kneel, and crouch. He can occasionally climb ladders, ropes and scaffolds and occasionally crawl. The claimant can frequently perform fine and gross manipulations. He must avoid concentrated exposure to extreme cold, extreme heat, humidity, and hazards. Additionally, he must avoid concentrated exposure to pulmonary irritants, such as fumes, odors, dusts, gases, and poor ventilation. The claimant is limited to understanding, remembering and carrying out simple instructions.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on June 19, 1981 and was 26 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules support 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) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from February 10, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Here, the claimant's age appears to be based on the initial alleged disability onset date of August 8, 2007. (R. at 21.)
APPLICABLE LAW
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." 42 U.S.C. § 423(a). "Disability" is defined in the Act as the 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" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Monroe, 826 F.3d at 180. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends that the ALJ erred in his assessment that Plaintiff's fibromyalgia does not render him disabled. More specifically, Plaintiff alleges that the ALJ failed to comply with the provisions of SSR 12-2p and failed to properly assess the medical opinions relating to his fibromyalgia. (Dkt. No. 15 at 22-30.) Plaintiff further argues that the ALJ failed to include substantial evidence in his RFC. (Id. at 32-35.) Finally, Plaintiff argues that the ALJ should have obtained Vocational Expert ("VE") testimony to determine if jobs exist in the national economy for Plaintiff, instead of relying on the Medical Vocational Guidelines. (Id. at 30-32.)
As discussed further below, the undersigned finds that the ALJ appropriately considered Plaintiff's fibromyalgia in assessing Plaintiff's RFC. However, because the ALJ found Plaintiff suffered from nonexertional limitations, the undersigned finds he erred by failing to obtain VE testimony to determine if jobs exist in the national economy that Plaintiff can perform. Accordingly, the case should be remanded so that a VE may be called to identify any jobs which Plaintiff could perform with his non-exertional limitations.
A. Fibromyalgia
Plaintiff first argues that the ALJ failed to properly evaluate Plaintiff's fibromyalgia under SSR 12-2p. (Dkt. No. 15 at 22.) Specifically, Plaintiff argues that in evaluating his fibromyalgia, the ALJ improperly relied on objective evidence to discount its severity and "failed to properly look at the longitudinal record." (Id. at 24.) Plaintiff further argues here that the ALJ failed to properly assess the medical opinions relating to his fibromyalgia. (Id. at 25-30.) Given these alleged errors, Plaintiff contends the ALJ failed to properly assess his RFC. (Id. at 32-35.)
Social Security Ruling (SSR) 12-2p governs the evaluation of fibromyalgia, see SSR 12-2p, 2012 WL 3104869 (S.S.A. July 25, 2012), and it explains that fibromyalgia is "a 'complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.'" Smith v. Colvin, Case No. 1:14-cv-4400-RBH, 2016 WL 1089302, at *5 (D.S.C. March 21, 2016). Fibromyalgia may be found when a person meets all three of the following criteria: "(1) a history of widespread pain, (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, and (3) evidence that other disorders could cause these repeated manifestations were excluded." Id. at *6. SSR 12-2p provides that fibromyalgia should be considered in the RFC based on a longitudinal record whenever possible because symptoms can wax and wane such that a person may have "bad days and good days." Id. Courts have recognized that fibromyalgia symptoms are entirely subjective; there is no laboratory test to confirm the presence or severity of it; and physical examinations usually yield normal results such as a full range of motion, no joint swelling, normal muscle strength and neurological reactions. Id. at *7.
For the reasons discussed below, the undersigned finds that the ALJ's RFC assessment is supported by substantial evidence. The ALJ appropriately evaluated Plaintiff's fibromyalgia in accordance with SSR 12-2p and properly assessed the opinion evidence on this issue.
1. The ALJ's Consideration of Objective and Subjective Evidence
The ALJ devoted an extensive portion of his decision to summarizing and evaluating the evidence regarding Plaintiff's fibromyalgia. (R. at 723-24, 726-34.) Contrary to Plaintiff's assertion, there is no basis to find that he failed to consider the longitudinal record. He has accounted for Plaintiff's well documented treatment for fibromyalgia during the relevant time period, as well as Plaintiff's subjective statements about this impairment.
In his decision, the ALJ expressly recognized that he was to evaluate Plaintiff's fibromyalgia under SSR 12-2p and stated that he indeed evaluated the impairment under this regulation. (R. at 723.) While the ALJ noted the lack of objective medical evidence to support the alleged severity of Plaintiff's fibromyalgia, he also emphasized that Plaintiff's reported daily activities "suggest[] his pain and pulmonary symptoms are generally tolerable and do not support his assertion that he is disabled." (R. at 731.) Plaintiff argues here that the ALJ ignored Plaintiff's testimony on the effects of his medication. (Dkt. No. 23 at 3; R. at 762.) However, the ALJ expressly acknowledged such testimony when discussing Plaintiff's reported daily activities, stating:
While the claimant testified he experiences difficulty concentrating, dizziness and drowsiness secondary to his pain medications, there is no indication he has related those side effects to his treating physicians on a recurring basis, suggesting they do not occur with any significant frequency or severity. Nonetheless, I have considered the claimant's testimony in limiting him to unskilled work with a restriction on hazards.(R. at 731.)
In addition to his consideration of Plaintiff's subjective complaints, the ALJ also noted that Plaintiff "reported some improvements of his pain with physical therapy" and "reported significant improvement of his pain symptoms with medication." (R. at 729.) The ALJ further noted that Plaintiff declined an epidural steroid injection to treat his back pain because he had gained 30 pounds after previously receiving an epidural injection. (R. at 729-30.) The ALJ gave great weight to an October 2015 opinion from Plaintiff's rheumatologist that Plaintiff "has an adequate ability to perform complex activities of daily living and relate to others." (R. at 733.)
Thus, contrary to Plaintiff's assertion, the ALJ did not solely rely on objective evidence in discounting the severity of Plaintiff's fibromyalgia.
2. The ALJ's Consideration of Opinion Evidence
The ALJ also extensively considered the opinion evidence relating to Plaintiff's fibromyalgia to assess his RFC, as discussed further below. (R. at 731-34.)
a. Plaintiff's Treating Physicians
Plaintiff disputes the ALJ's analysis of the opinions of Plaintiff's rheumatologist, Dr. Sofia Askentijevich and his treating physician, Dr. David Castellone.
Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. See 20 C.F.R. § 416.927. The medical opinion of a treating physician is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see also Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Thus, "[b]y negative implication, 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." Craig, 76 F.3d at 590. "Under such circumstances, the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro, 270 F.3d at 178.). The regulations recognize that the nature and extent of the treatment relationship may also affect the weight afforded by an ALJ. 20 C.F.R. § 416.927(c). Opinions by physicians regarding the ultimate issue of whether a plaintiff is disabled within the meaning of the SSA are not given controlling weight because the decision on that issue is reserved to the Commissioner alone. Id. at § 416.927(d).
The undersigned notes that the "Treating Physician Rule," which applies in the instant action, applies only to claims filed before March 27, 2017. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017).
If the ALJ decides a treating physician's opinion is not entitled to controlling weight, the ALJ must consider the following non-exclusive list of factors to determine the weight to afford the physician's opinion: (1) the length of the treatment relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidence with which the physician supports his opinion; (4) the consistency of the opinion; (5) whether the physician is a specialist in the area in which he is rendering an opinion; and (6) other factors that support or contradict the opinion. 20 C.F.R. § 404.1527(c). The Commissioner must provide specific reasons, supported by the record, for the weight afforded a treating physician's medical opinion. SSR 96-2p.
In Smith v. Colvin, the court found that "Ruling 12-2p indicates the treating physician's opinion is the best evidence for determining the extent of a claimant's fibromyalgia symptoms." 2016 WL 1089302, at *5 (citing SSR 12-2p, 77 Fed. Reg. at 43,642 ("When a person alleges FM [fibromyalgia], longitudinal records reflecting ongoing medical evaluation and treatment from acceptable medical sources are especially helpful in establishing both the existence and severity of the impairment." (emphasis added)). The Smith court further noted that rheumatologists' opinions are particularly relevant in such cases because "[f]ibromyalgia is a rheumatic disease[,] and the relevant specialist is a rheumatologist." Id. (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (criticizing the ALJ for rejecting the value of the medical opinions of the plaintiff's treating rheumatologist)).
i. Dr. Askentijevich
Dr. Askentijevich offered three opinions, each assessed by the ALJ. In an October 2014 questionnaire supplied by the claimant's attorney, she stated, inter alia, that claimant cannot work on a regular and consistent basis. (R. at 1512-1514.) By letter dated April 2015, she stated that Plaintiff "has fibromyalgia that has been difficult to control with the standard of care medications . . . He has also been diagnosed with depression. He has been quite limited in his ability to function on a day to day basis because of fibromyalgia and his other conditions, and would have great difficulties obtaining and maintaining a job." (R. at 1372.)
The ALJ afforded these opinions little weight, finding they "are not supported by her own treatment notes." (R. at 733.) In his decision, the ALJ discussed at length the treatment records from Dr. Askentijevich—he emphasized that Dr. Askentijevich's treatment notes documented that Plaintiff "reported some improvements of his pain with physical therapy" and "reported significant improvement of his pain symptoms with medication." (R. at 729.) Upon review, Dr. Askentijevich's longitudinal treatment notes indeed indicate that Plaintiff's fibromyalgia symptoms improved with physical therapy and medication:
On October 30, 2014, Dr. Askentijevich noted that Plaintiff "is complaining of continued diffuse body pain . . . Physical therapy and warm pool twice a week has been helping." (R. at 709.) On January 16, 2015, Dr. Askentijevich noted that Plaintiff was complaining of pain all over and that Lyrica seemed to help a little. Dr. Askentijevich also noted that Plaintiff suffered a gout attack that "resovled quickly after an injection of IM of Toradol. He was given a prescription for indomethacin which he has only taken one capsule. He has been doing physical therapy 3 tLight weights, heats, TENS, light massage. It has helped significantly." (R. at 1443.) On February 20, 2015, Dr. Askentijevich noted that Plaintiff "has increased Lyrica with improvements of his generalized pain." (R. at 1441.) Indeed, on May 6, 2015, Dr. Askentijevich noted that Savella "helped significantly with the diffuse body pain" and "[l]ight massages have been helpful." (R. at 1435.)
The ALJ also discounted the above opinions from Dr. Askentijevich because "they are inconsistent . . . [with] the remainder of the medical record." (R. at 733.) The ALJ further noted that "treatment of the claimant's anxiety and depression has been relatively sporadic and infrequent, and no significant objective mental abnormalities have been documented in treatment notes." (R. at 733.)
Dr. Askentijevich offered a third opinion in October of 2015 based on Plaintiff's "mental diagnosis" of fibromyalgia in which she opined that Plaintiff has an adequate ability to perform complex basic activities of daily living and relate to others. (R. at 1512.) The ALJ afforded this opinion great weight. (R. at 733.)
While a rheumatologist's opinion is indeed considered particularly relevant to cases of fibromyalgia, there is no basis to find the ALJ did not give Dr. Askentijevich's opinions appropriate consideration. As discussed above, the ALJ offered many reasons to discount the severity of Plaintiff's fibromyalgia, including the October 2015 opinion from Dr. Askentijevich. While much of this discussion took place elsewhere in the ALJ's decision, that does not undermine the ALJ's compliance with the treating physician rule. See Tallmage v. Comm'r of Soc. Sec. Admin., Case No. 1:13-cv-02035-TLW, 2015 WL 1298673, at *12 (D.S.C. Mar. 23, 2015). ("The decision should be viewed as a whole in order to determine whether the[] requirements [of the treating physician rule] have been met and whether substantial evidence supports the ALJ's decision.").
A review of the ALJ's decision in its entirety demonstrates that the ALJ appropriately assessed the opinions of Dr. Askentijevich in accordance with Social Security regulations. See Tallmage, 2015 WL 1298673, at *12; see also Williams v. Berryhill, Case No. 9:17-cv-01206-MBS, 2018 WL 4272183, at *3 (D.S.C. Sept. 7, 2018) (finding the ALJ provided sufficient explanation for giving treating physician opinion little weight with respect to the claimant's fibromyalgia where the ALJ considered "the lack of objective medical diagnosis and "Plaintiff's testimony" and the ALJ "provided an explanation for giving" the opinion little weight).
ii. Dr. Castellone
Dr. Castellone offered opinions in two questionnaires supplied by the claimant's attorney, dated September 2016 and April 2017, in which he opined, inter alia, that Plaintiff could walk, sit, and stand for less than 1 hour in an 8-hour day. (R. at 2431-35, 2464-68.) He based his opinions on Plaintiff's pulmonary impairments, fibromyalgia, depression, anxiety, and osteoarthritis. (R. at 2431, 2464.)
The ALJ afforded these opinions "little weight," finding they "are not supported by the objective evidence of record, including his own treatment notes." (R. at 734.) He concluded the "medical record does not reflect abnormalities to suggest the claimant is unable to perform a reduced range of light work." (R. at 734.)
Here, it appears that the ALJ largely discounted Dr. Castellone's opinions based on objective evidence, which is discouraged under the fibromyalgia case law. However, as noted by the ALJ, Dr. Castellone's opinions were not based solely on Plaintiff's fibromyalgia. Rather, he expressly considered the array of Plaintiff's impairments in drawing his conclusions. Thus, the undersigned does not find the ALJ's assessment here is necessarily in error for its reliance on objective evidence. In addition, the record indicates that Dr. Castellone treated Plaintiff on two occasions, March 21, 2017 (R. at 2479), and April 24, 2017 (R. at 2462). While Plaintiff received treatment at Dr. Castellone's practice, Palmetto Primary Care Physicians, for a lengthy period of time, the undersigned cannot find any record that he received treatment from Dr. Castellone personally, beyond the two aforementioned occasions. Cf. Godwin v. Colvin, Case No. 4:15-cv- 1953, 2016 WL 5425011 (D.S.C. Sept. 29, 2016) (finding ALJ failed to point to substantial evidence to support his decision to deny the opinion of a doctor where he pointed to one progress note "out of numerous visits over the course of twelve years"). Rather, it appears Plaintiff primarily received care from Deborah Berry Taylor, NP, at that institution. Accordingly, the undersigned finds no error in the ALJ's assessment of Dr. Castellone's opinions.
b. Non-acceptable medical source opinions
Plaintiff further disputes the ALJ's assessment of opinion evidence from nurse practitioner, Deborah Berry-Taylor, and licensed professional counselor, Rhonda L. Baoiocco. Both are not considered to be acceptable medical sources under Social Security Regulations.
The Social Security Regulations have been amended effective March 27, 2017, and under the new regulations, an advanced practice registered nurse or other licensed advanced practice nurse with another title is now considered an acceptable medical source for claims filed after that date. See 20 C.F.R. §§ 404.1502(a), 416.902(a) (2017). However, Plaintiff's claim was filed well before this date, and therefore the ALJ appropriately analyzed the opinions of Berry-Taylor under the prior version of these regulations.
Although "non-acceptable medical sources cannot be used to establish the existence of a medically determinable impairment[,] . . . such sources may provide evidence, including opinion testimony, regarding the severity of the claimant's impairments and [how] such impairment[s] affect the individual's ability to function." Sodders v. Colvin, Case No. 6:14-cv-57, 2016 WL 1065837, at *2 (W.D. Va. Mar. 16, 2016) (citations omitted).
i. Nurse Berry-Taylor
On May 1, 2014, Ms. Berry-Taylor opined that Plaintiff's diagnosis of Madelung's deformity "will affect his ability to work by restricting normal range of motion and his ability to lift heavy objects. He can also expect to experience progressive osteoarthritic changes and may, in the future, need surgery. He has also recently experienced an exacerbation of bronchitis, which is a recurring condition. I am reiterating that he is not a candidate for any kind of employment at this time." (R. at 1874.) On September 18, 2014, Ms. Berry-Taylor offered a one page "physician report," checking the box that Plaintiff is "permanently and totally disabled" due to his diagnoses of proinflammatory pulmonary fibrosis and fibromyalgia. (R. at 1875.) On November 30, 2015, Ms. Berry-Taylor stated that Plaintiff "is being treated for several medical conditions. Due to his neurological medical conditions he has a severe light sensitivity. He is to have darkened windows and wear darkened eyewear with UVB protection." (R. at 1873.) In June 2016, Berry-Taylor opined, inter alia, that Plaintiff could work less than one hour in an 8-hour work day. (R. at 2269-72.) She based this opinion on Plaintiff's pulmonary impairments, fibromyalgia, depression, anxiety, and osteoarthritis. (R. at 2269.)
The ALJ considered all of these opinions in his decision, ultimately assigning them "little weight . . . to the extent that she has indicated the claimant has greater limitations than those set forth above." (R. at 732.) In assessing these opinions, the ALJ stated:
Mr. Berry-Taylor is not an acceptable medical source pursuant to 20 CFR 404.1513(a) and 416.913(a), rendering her opinions less persuasive. Her opinion that the claimant is unable to work is a vocational issue reserved for the Commissioner. Moreover, the claimant[] has had a negative EMG study, negative ultrasounds of the bilateral wrists and negative serologic screenings, and he has exhibited no significant synovitis or manipulative deficits upon physical examinations. While he has had decreased FEV1 levels at times, his respiratory examinations have otherwise been unremarkable, as noted above. Additionally, while he has exhibited tenderpoints consistent with fibromyalgia, the claimant generally demonstrated full strength and no gait abnormalities to support Ms. Berry-Taylor's opinion that he is precluded from all work activity. . . .(R. at 732.)
In reference to Ms. Berry-Taylor's November 2015 opinion relating to Plaintiff's eye condition, the ALJ noted that "eye examinations of record have been relatively unremarkable, as noted above, and there is no evidence showing the claimant reported significant eye sensitivity to his treating providers on a recurring basis." (R. at 732.)
Plaintiff briefly argues here that the ALJ "does not provide adequate explanation to give [Ms. Berry-Taylor's] statement little weight." (Dkt. No. 15 at 27.) However, as demonstrated above, the ALJ provided numerous reasons for discounting this opinion evidence. While he found her opinions were inconsistent with objective evidence, her opinions appear to rely on the full range of Plaintiff's impairments, rather than focusing primarily on Plaintiff's fibromyalgia. Thus, the undersigned cannot find that the ALJ erred highlighting the objective evidence that was inconsistent with her opinions. Further, the ALJ offered reasons elsewhere in his decision for finding Plaintiff's subjective testimony about her pain and fatigue was not supported by the record. (R. at 729-33.) See Tallmage, 2015 WL 1298673, at *12 ("The decision should be viewed as a whole in order to determine whether the[] requirements [of the treating physician rule] have been met and whether substantial evidence supports the ALJ's decision."). Accordingly, the undersigned finds no error in the ALJ's analysis here.
ii. Counselor Baiocco
On June 30, 2016, Plaintiff's counselor, Rhonda Baiocco, wrote that Plaintiff initially reported to her on April 1, 2015 "for issues related to ongoing problems with depression." (R. at 2278.) She noted that Plaintiff suffered injuries from a 2007 motocycle accident, resulting in a punctured lung and severe injuries to his hip and back. "These injuries have caused [Plaintiff] chronic pain issues which he reports experiencing on a daily basis. [Plaintiff's] pain has also been exacerbated by his fibromyalgia which continues to progressively worsen over time." Ms. Baiocco stated that she "currently continue[s] to provide treatment to [Plaintiff] on a weekly basis to monitor and address his diagnostic symptoms . . . " (R. at 2279.) She concluded that Plaintiff has "significant difficulty in functioning effectively in many areas of his life." (R. at 2278.)
The ALJ expressly considered this opinion, noting that Ms. Baiocco "is not an acceptable medical source . . . . Moreover, that opinion is an opinion outside the scope of her treatment expertise, and there are no objective findings showing the claimant's pain symptoms would preclude him from performing a reduced range of light work as set forth above." (R. at 733.)
Plaintiff argues here that the ALJ improperly failed to recognize that Ms. Baiocco's opinion substantiated the subjective testimony and treatment records related to the effects of Plaintiff's pain. (Dkt. No. 15 at 28.) However, as discussed above, the ALJ discussed in detail both the objective and subjective evidence that was inconsistent with the pain alleged by Plaintiff due to his fibromyalgia. Further, the undersigned cannot find any treatment notes from Ms. Baiocco in the record. Thus, the extent of Plaintiff's treatment relationship with Ms. Biaocco is unclear. For the foregoing reasons, the undersigned finds that the ALJ appropriately assessed the opinions of Baiocco.
c. Dr. Trouche
Finally, Plaintiff disputes the ALJ's assessment of psychiatrist, Dr. Perry Trouche. (Dkt. No. 15 at 28.) On September 28, 2016, Dr. Trouche opined in a disability questionnaire that Plaintiff could work less than one hour in an eight-hour workday. (R. at 2446-49.) He concluded Plaintiff was "unable to work due to his conditions." (R. at 2448.) He noted Plaintiff's diagnoses of "mood disorder due to psychological conditions" and based his answers to the questionnaire on Plaintiff's "chronic pain, . . . depression, anxiety, . . . and pulmonary condition." (R. at 2446.)
Plaintiff does not appear to allege Dr. Trouche was a treating psychiatrist. The record reveals that Plaintiff met with Dr. Trouche on August 22, 2016. (R. at 2429.) The undersigned cannot find any other evidence of treatment by Dr. Trouche in the record.
The ALJ assigned this opinion little weight, finding that his "opinions are not supported by the essentially benign mental status examinations, and the relatively sporadic and infrequent treatment of the claimant's mental disorders. Additionally, in April 2017, Dr. Castellone noted the claimant exhibited a normal mood and affect." (R. at 734.)
Here, Plaintiff asserts that the ALJ erred in finding Plaintiff's treatment for mental disorders was "sporadic and infrequent" based on Ms. Biaocco's statement she met with Plaintiff weekly. (Dkt. No. 15 at 29.) However, as noted above, the undersigned cannot find any treatment notes from Ms. Baiocco in the record. Therefore, the ALJ could not have known the time period covered by Ms. Baiocco's referenced "weekly" treatments of Plaintiff's mental conditions. The ALJ appropriately found that Dr. Trouche's opinion was inconsistent with the evidence in the record—A review of the ALJ's decision in its entirety demonstrates that the ALJ appropriately assessed his opinion in accordance with Social Security regulations. See Tallmage, 2015 WL 1298673, at *12.
3. The ALJ's RFC Analysis
Plaintiff relies on Smith v. Colvin to argue that remand is required so that the ALJ can properly evaluate Plaintiff's fibromyalgia in assessing her RFC. (Dkt. No. 15 at 23.) In Smith, "the ALJ relied exclusively on objective medical evidence" to evaluate the claimant's fibromyalgia as it related to her RFC. 2016 WL 1089302, at *8. The court found that the ALJ failed to account for the subjective nature of fibromyalgia, and it therefore could not deduce whether the subjective complaints of fibromyalgia pain were considered in determining the RFC. Id. at *9. Smith v. Colvin is inapplicable here, where the ALJ has considered both the objective medical evidence as well as Plaintiff's subjective complaints relating to his fibromyalgia pain and fatigue.
While Plaintiff disagrees with the ALJ's interpretation of the evidence on this issue, it is the duty of the ALJ to make findings of fact and resolve conflicts in the evidence. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (holding that a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ). As demonstrated above, the ALJ provided specific reasons beyond the objective medical evidence to discount the severity of Plaintiff's fibromyalgia. He considered the opinion evidence related to this impairment and provided sufficient explanation for how those opinions factored into his RFC assessment. Based on the foregoing analysis, the Court finds that Plaintiff has complied with SSR 12-2p and has properly evaluated the opinion evidence at issue. See Andrade v. Berryhill, Case No. 3:18-cv-00112-FDW, 2018 WL 6028722, at *5 (W.D.N.C. Nov. 16, 2018) (finding the ALJ complied with SSR 12-2p where the ALJ "considered both the objective medical evidence of Plaintiff's fibromyalgia pain and fatigue in the record, as well as Plaintiff's subjective complaints, in making the RFC determination"); McDaniel v. Colvin, Case No. 1:16-cv-493-DCN-SVH, 2016 WL 11201450, at *17 (D.S.C. Nov. 30, 2016) (finding "the ALJ cited sufficient evidence to support his conclusion that Plaintiff's fibromyalgia limited her to the performance of light work" where the ALJ's decision reflected his "longitudinal consideration of Plaintiff's reports of fibromyalgia-related pain" and he "cited Plaintiff's reports that the medication was controlling her pain"), adopted by, 2017 WL 3822732 (D.S.C. Aug. 31, 2017).
Accordingly, the undersigned finds that substantial evidence supports the ALJ's findings as to Plaintiff's RFC.
B. Vocational Expert Testimony
Finally, Plaintiff argues that the ALJ erred by relying on the Medical Vocational Guidelines ("Grid Rules") to determine if jobs exist in the national economy for Plaintiff, instead of obtaining Vocational Expert ("VE") testimony on this issue. (Id. at 30-32.)
Grid Rules, "relieve the [Commissioner] of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy." Heckler v. Campbell, 461 U.S. 458, 461 (1983). The Grid Rules are utilized at step five of the sequential evaluation in determining whether jobs exist that a claimant can perform, where the claimant's "impairment(s) prevents the performance of his or her vocationally relevant past work." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00. If, however, the plaintiff has nonexertional limitations in addition to exertional limitations, the guidelines are not to be treated as conclusive. See 20 C.F.R. § 404.1569; Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir. 1981); Pratts v. Chater, 94 F.3d 34, 39 (2nd Cir. 1996). Non-exertional impairments include mental impairments, such as affective disorder and borderline intellectual functioning. See Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
In Grant v. Schweiker, the Fourth Circuit Court of Appeals held that where a claimant demonstrates the presence of non-exertional impairments, the Commissioner, in order to prevail, must be required to prove by VE testimony that, despite the claimant's combination of non-exertional and exertional impairments, specific jobs exist in the national economy which he or she can perform. 699 F.2d at 192. The Grid Rules may satisfy the Commissioner's burden of coming forward with evidence as to the availability of jobs the claimant can perform only where the claimant suffers solely from exertional impairments. Id.
In Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir. 1984), however, the Fourth Circuit found that not every malady of a non-exertional limitation rises to the level of a nonexertional impairment. The proper inquiry, under Grant, is whether a given nonexertional condition affects an individual's residual functional capacity to perform work of which he or she is exertionally capable. Id. If the condition has that effect, it is properly viewed as a "nonexertional impairment," thereby precluding reliance on the Grids to determine a claimant's disability. Id.
Here, Plaintiff asserts that his nonexertional limitations, including his depression, anxiety, pain, and fatigue, require the input of VE testimony. (Dkt. No. 15 at 31-32.) As Plaintiff notes, the ALJ found that Plaintiff had several nonexertional limitations in his decision, which apparently factored into his RFC assessment. Specifically, the ALJ found that Plaintiff had a mild limitation in "understanding, remembering, and applying information" as well as in "interacting with others." (R. at 724.) He found that Plaintiff had a "moderate limitation" with regard to "concentrating, persisting, or maintaining pace." (R. at 724.) The ALJ found Plaintiff had the "severe impairments" of depression and anxiety at step two, and later stated, "I have accounted for the claimant's depression and anxiety in limiting him to unskilled work; however, there are no objective findings showing his mental disorders impose greater limitations than those set forth above." (R. at 722, 730.) In Plaintiff's RFC, the ALJ limited Plaintiff to "less than the full range of light work" with further limitations "to understanding, remembering and carrying out simple instructions." (R. at 725.)
Given the ALJ's own analysis of Plaintiff's nonexertional limitations, the undersigned finds that the ALJ erred in relying solely on the Grid Rules in finding that Plaintiff is not disabled. Many courts in this district have found that where there are such nonexertional limitations in the ALJ's decision, reliance on the Grid Rules is not appropriate. See, e.g., Johnson v. Berryhill, Case No. 0:17-cv-180-DCC-PJG, 2018 WL 3104287, at *4 (D.S.C. Apr. 11, 2018) ("[W]here there are limitations stemming from a mental impairment, reliance on the Grids is not appropriate.") adopted by, 2018 WL 2252342 (D.S.C. May 17, 2018); White v. Colvin, Case No. 2:12-cv-02990-JMC, 2014 WL 1320235, at *5 (D.S.C. Mar. 31, 2014) ("Plaintiff's combination of exertional and non-exertional impairments presented a situation where the Commissioner needed to establish through expert vocational testimony—not exclusive reliance on the Grids—that specific jobs exist in the national economy that Plaintiff can perform."); Phillips v. Astrue, Case No. 4:11-cv-01018-JMC, 2012 WL 3765184, at *4 (D.S.C. June 11, 2012) ("Moderate difficulties in maintaining social functioning or concentration, persistence or pace, would obviously affect the occupational base[] for unskilled work, precluding reliance on the Grids to direct a finding of not disabled. Therefore, remand is recommended so that a VE may be called to address proper hypotheticals which include all of the Plaintiff's impairments and identify any jobs which Plaintiff could perform with his non-exertional limitations.") adopted by, 2012 WL 3775968 (D.S.C. Aug. 30, 2012); Townsend v. Astrue, Case No. 9:10-cv-1525-JFA, 2011 WL 4055402, at *4 (D.S.C. Sept. 12, 2011) ("[T]he ALJ used the Grids solely to direct a finding of not disabled, ruling that these limitations had little or no effect on the occupational base of unskilled light work. This finding constitutes reversible error, as moderate difficulties in maintaining social functioning or concentration, persistence or pace, would obviously affect the occupational base for unskilled work, precluding reliance on the Grids to direct a finding of not disabled.").
For example, in Groth v. Berryhill, Case No. 0:16-cv-01581-JMC, 2018 WL 1430956, at *3 (D.S.C. Mar. 22, 2018), the court found the ALJ improperly "became a vocational expert" when he relied solely on the Grid Rules to find that the claimant was not disabled. Specifically, the ALJ found that the claimant had "moderate difficulties in concentration, pace, and persistence" due to her severe nonexertional impairment and could perform "unskilled work with only simple instructions and tasks." Groth, 2018 WL 1430956 at *4. The Groth court found that "[b]ecause Plaintiff has a severe nonexertional impairment which is a cause for her moderate difficulties in concentration, pace, and persistence, the ALJ is precluded from relying solely on the Grids." Id. In so finding, the court expressly rejected the magistrate judge's finding that "because the ALJ addressed Plaintiff's attention problems and moderate limitations in attentive and cognitive functioning by limiting Plaintiff to unskilled work with only simple instructions and tasks, the ALJ could rely solely on the Grids." Id.
Here, as in Groth, the ALJ found that Plaintiff suffered from severe mental impairments (depression and anxiety) and assessed nonexertional limitations in part on that basis. (R. at 724, 730.) The ALJ then addressed these limitations in his RFC by limiting Plaintiff to "unskilled work" with only "simple instructions." (R. at 722, 725.) As discussed in the above caselaw, these nonexertional limitations required the ALJ to obtain VE testimony to determine that specific jobs exist in the national economy that Plaintiff can perform. See Groth, 2018 WL 1430956 at *4; White, 2014 WL 1320235, at *5; Phillips, 2012 WL 3765184, at *4; Townsend, 2011 WL 4055402, at *4.
Accordingly, the undersigned recommends that this matter be remanded so that the ALJ can properly evaluate whether there are specific jobs in the national economy that Plaintiff can perform despite his combination of exertional and nonexertional impairments.
Recommendation
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 28, 2019 Charleston, South Carolina