Tant
v.
Berryhill

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISIONAug 6, 2018
5:17-CV-274-D (E.D.N.C. Aug. 6, 2018)

5:17-CV-274-D

08-06-2018

SHEILA ANN TANT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


MEMORANDUM AND RECOMMENDATION

In this action, plaintiff Sheila Ann Tant ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") on the grounds that she is not disabled. The case is before the court on plaintiff's motion for judgment on the pleadings (D.E. 11) and the Commissioner's motion for summary judgment (D.E. 16). Each party filed a memorandum in support of its motion (D.E. 12, 17) and plaintiff filed a reply (D.E. 18). The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 6 Apr. 2018 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.

The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416. The versions of the regulations and Social Security Rulings cited herein by the undersigned magistrate judge are those in effect at the time of issuance of the Commissioner's decision.

The briefing order in this case directed that it proceed by motions for judgment on the pleadings. 25 Sept. 2017 Ord. (D.E. 10) 1 ¶ 1 ("This action will proceed by motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). . . . . If defendant opposes plaintiff's motion, counsel for defendant must file a motion for a judgment affirming the Commissioner's decision."). While the court does not excuse the Commissioner's noncompliance with this directive, it is not material to the court's analysis.

I. BACKGROUND

A. Case History

Plaintiff protectively filed applications for DIB on 17 April 2013 and SSI on 27 November 2015, alleging a disability onset date of 11 November 2008 for both applications. Transcript of Proceedings ("Tr.") 21. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 21. On 15 March 2016, a hearing was held before an ALJ, at which the witnesses were plaintiff, who was represented by counsel, and a vocational expert. Tr. 38-80. At the hearing, plaintiff amended her alleged disability onset date to 5 November 2012. Tr. 21 (ALJ's recitation of amendment in decision); 44-45 (discussion of amendment at hearing); 237 (amendment form). The ALJ issued a decision denying plaintiff's claims on 4 May 2016. Tr. 21-32.

Plaintiff timely requested review by the Appeals Council, and on 6 April 2017, the Appeals Council denied the request for review. Tr. 1. At that time, the decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On 7 June 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See Comp. (D.E. 1).

B. Standards for Disability

The Social Security Act ("Act") defines disability 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 12 months." 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).

The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).

The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.

Mascio v
. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).

See also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2), 404.929.

C. ALJ's Findings

Plaintiff was 53 years old on the amended alleged disability onset date and 56 on the date of the hearing. See Tr. 30 ¶ 7. The ALJ found that she has at least a high school education and past relevant work as an electronics assembler. Tr. 30 ¶ 6; 31 ¶ 8.

The ALJ found that plaintiff was 53 on "the alleged disability onset date," rather than "the amended alleged disability onset date," but the omission of "amended" was clearly inadvertent. Tr. 30 ¶ 7.

Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the amended alleged disability onset date. Tr. 23 ¶ 2. At step two, the ALJ found that plaintiff has the severe impairments of obesity, asthma, anxiety, bipolar disorder, and post-traumatic stress disorder ("PTSD"). Tr. 23 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 24 ¶ 4.

The ALJ next found that plaintiff has the RFC to perform a limited range of medium work:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform medium work as defined in 20 CFR 404.1567(c)

and 416.967(c) except the claimant would be able to lift and carry, push and pull, up to 25 pounds frequently and 50 pounds occasionally, and to stand and walk for up to six hours in an eight-hour work day, and to sit for up to six hours in an eight-hour work day. The claimant could never work at unprotected heights, around moving mechanical parts, or with dust, odors, fumes, or pulmonary irritants. She would be limited to hearing and understanding simple oral instructions and to communicating simple information. In addition, the claimant would be limited to perform simple, routine, and repetitive tasks but not at a production rate pace. She could occasionally interact with supervisors, coworkers, and the public. The claimant would be limited to making simple work related decisions. The claimant's time of task would be accommodated by normal breaks.

Tr. 25 ¶ 5.

These regulations provide that medium work involves lifting items weighing up to 50 pounds at a time with frequent lifting or carrying of items weighing up to 25 pounds. See 20 C.F.R. §§ 404.1567(c), 416.967(c); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "M-Medium Work," 1991 WL 688702. "Medium work" and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. §§ 404.1567, 416.967.

In making his RFC determination, the ALJ discounted plaintiff's statements regarding her mental and other impairments, stating:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

Tr. 26 ¶ 5.

Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform her past relevant work. Tr. 30 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of linen room attendant, marker, and coffee maker. Tr. 31 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the amended alleged disability onset date, 5 November 2012, through the date of the decision, 4 May 2016. Tr. 32 ¶ 11.

II. STANDARD OF REVIEW

Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.

The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.

Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

III. OVERVIEW OF PLAINTIFF'S CONTENTIONS

Plaintiff contends that the ALJ's decision should be reversed and benefits awarded, or that this case should be remanded for further administrative proceedings on the grounds that the ALJ erred in in evaluating certain medical evidence and in assessing her testimony. Because the issues of the ALJ's evaluation of the medical evidence is dispositive of this appeal, the court will limit its discussion to that issue.

IV. ALJ'S EVALUATION OF MEDICAL EVIDENCE

A. Applicable Legal Principles

"Medical opinions are statements from physicians and psychologists or other 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)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F. Supp. 2d 740, 752 (N.D.W. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").

The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, namely, the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).

The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").

The same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (W.D. Va. 21 Apr. 2015); Napier v. Astrue, Civ. No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to the opinions of an examining source than the opinions of a nonexamining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").

Similarly, the factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") apply to the opinions of providers who are deemed to be at a different professional level (or so-called "other sources"). See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *2, 4 (9 Aug. 2006); see also 20 C.F.R. §§ 404.1513(d), 416.913(d) (partial listing of "other sources"). As with opinions from physicians and psychologists, the ALJ must explain the weight given opinions of other sources and the reasons for the weight given. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6; Napier, 2013 WL 1856469, at *2. The fact that an opinion is from an acceptable medical source may justify giving that opinion greater weight than an opinion from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.

Opinions from medical sources on the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. §§ 404.1527(d), 416.927(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *3 ("[O]pinions 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.").

B. Analysis

In his decision, the ALJ identifies five sets of examining source opinions regarding plaintiff's mental impairments (see Tr. 27-29), aside from global assessment of functioning ("GAF") scores (see Tr. 29-30 ¶ 5). Plaintiff contends that the ALJ erred in his evaluation of four sets of these opinions. The court agrees.

The one set whose analysis is not challenged by plaintiff is the 28 February 2013 assessment by treating Licensed Professional Counsellor ("LPC") Stephen R. Hughes, M.A. Tr. 325; see also Tr. 27 ¶ 5 (ALJ's discussion of LPC Hughes' opinions). In addition to the examining source opinions, the record contains the opinions of nonexamining state agency consulting psychologists at the initial and reconsideration levels of review. Tr. 81-92, 94-109; see also Tr. 29 ¶ 5 (ALJ's discussion of state agency psychologists' opinions).

1. 13 July 2012 Letter and Questionnaire by Dr. Buonaccorsi

Two sets of opinions are by treating psychiatrist Peter Buonaccorsi, M.D. as the sole source, dated 13 July 2012. Tr. 381-88, 389. The ALJ summarized them as follows:

A letter dated July 13, 2013 by Peter Buonaccorsi, M.D. indicated that the claimant had been followed since November 2012 for mood swings and post-traumatic stress symptoms. Dr. Buonaccorsi stated that the claimant was unable to work during this period due to the severity and unpredictability of her mood and panic attacks. Dr. Buonaccorsi stated that the claimant could get easily irritable, had difficulty trusting others, and was very distractible. The claimant has had frequent nightmares that disrupt her sleep and make it difficult for her to function during the day. Dr. Buonaccorsi stated that he had seen the claimant for evaluation and management of her psychiatric medicines seven visits since November. Dr. Buonaccorsi opined

that the claimant was disabled due to her mood and panic symptoms and he did not know when she might be able to return to the work force. Dr. Buonaccorsi stated that the claimant's symptoms, even under better control, were severe enough to preclude her working consistently with the public. (Exhibit 3F)
In a questionnaire dated July 31, 2013, Dr. Buonaccorsi indicated that the claimant was diagnosed with bipolar disorder and PTSD. Dr. Buonaccorsi indicated that the claimant could not be rated on available evidence for understanding and memory, the ability to carry out simple one or two step instructions, maintain a schedule or regular attendance, the ability to work in coordination or proximity to others, or the ability to make simple work related decisions. Dr. Buonaccorsi indicated that the claimant would have periods of decompensation periodically but some low stress work environments might be tolerable. (Exhibit 3F)

Tr. 27 ¶ 5.

The ALJ then stated that he gave "partial weight to Dr. Buonaccorsi's opinion," stating:

The undersigned notes the treating relationship that the claimant has with Dr. Buonaccorsi, however, the doctor's questionnaire is mostly a box check opinion with little analysis or explanation and a good number of the boxes are checked as not ratable on available evidence. Therefore, the undersigned gives partial weight to Dr. Buonaccorsi's opinion.

Tr. 27 ¶ 5.

One manifest problem with the ALJ's analysis is that it is not apparent that it encompasses Dr. Buonaccorsi's letter. While the existence of a treating relationship with plaintiff would apply to the letter, as a factor tending to enhance the weight given it, the two reasons the ALJ gives for discounting Dr. Buonaccorsi's opinons refer only to the questionnaire. In stating his conclusion of allowing partial weight, the ALJ uses the term "Dr. Buonaccorsi's opinion" without specifying that it includes Dr. Buonaccorsi's letter. Moreover, both reasons concern matters arguably unique to the questionnaire—its check box format and identification of abilities as unratable for lack of evidence. The letter is a narrative containing at least some explanation and includes no specification of unratable abilities. Of course, if Dr. Buonaccorsi lacked sufficient evidence to rate a certain ability for the questionnaire, he also would for the letter. But the ALJ does not indicate whether he deemed any such lack of evidence pertinent to the opinions expressed in the letter.

The court recognizes that there is arguably some overlap between the opinions expressed in the letter and those in the questionnaire. But not all the opinions in the letter are necessarily subsumed in the questionnaire. Therefore, the evaluation of the questionnaire cannot be deemed to apply to the letter due to overlap of the opinions expressed in them.

While the check box format of the questionnaire was a valid basis for discounting the questionnaire, see, e.g., Koonce v. Berryhill, No. 4:17-CV-40-D, 2018 WL 3029986, at *9-10 (E.D.N.C. 8 May 2018), mem. & recomm. adopted, 2018 WL 3025945 (18 June 2018), it is not as clear that its purported inclusion of some abilities as unratable is. One concern is that this finding is ambiguous. The fact that an ability was not rated signified that Dr. Buonaccorsi was not offering a substantive opinion as to that ability. In this sense, there is not an opinion to discount. Under this interpretation, the ALJ's attribution of partial weight due to unratability would be irrational.

On the other hand, the ALJ could be indicating that, given Dr. Buonaccorsi's determination that he lacked sufficient evidence to assign any rating to certain abilities, he lacked sufficient information to render opinions as to other abilities to which he did assign ratings. The problem with this interpretation of the ALJ's finding is that it appears to invade the expertise of Dr. Buonaccorsi, which the ALJ may not properly do. See Rohan v. Chater, 98 F.3d 966, 970 (4th Cir. 1996) ("ALJs must not succumb to the temptation to play doctor and make their own independent medical findings."). Dr. Buonaccorsi's expertise would appear to include the determination whether or not he had sufficient information regarding a particular ability to assign a rating to it. Presumably he would not have assigned a rating to an ability unless he believed he did have sufficient evidence to do so. Indeed, the fact that he marked certain abilities as unratable suggests his sensitivity to this issue. The ALJ fails to provide an explanation of his finding that might otherwise dispel the appearance of his impermissibly playing doctor.

The ALJ's errors regarding the letter and questionnaire by Dr. Buonaccorsi warrant remand. By failing to clearly express an evaluation of Dr. Buonaccorsi's letter, the court is prevented from conducting meaningful review of what weight the ALJ accorded the opinions in the letter. See Radford, 734 F.3d at 295. Similarly, given the deficiencies in the ALJ's finding regarding Dr. Buonaccorsi's determination on the unratability of certain abilities, the ALJ has failed to build an accurate and logical bridge from the evidence to his conclusion regarding the opinions in the questionnaire, as required. Monroe, 826 F.3d 176, 189-91 (4th Cir. 2016).

Independent of these considerations, the court cannot dismiss the possibility that proper evaluation of Dr. Buonaccorsi's opinions could reasonably have resulted in a different conclusion regarding them and possibly thereby the assessment of plaintiff's statements regarding her mental impairments and associated limitations, and her RFC. The errors were therefore not harmless. Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). The fact that Dr. Buonaccorsi's letter and questionnaire constituted two of the five sets of opinions by examining medical sources—and two of the three sets by treating sources—reinforces the need for remand.

2. 25 September 2013 Consultative Evaluation by LPA Luellen and Dr. Burgess

Licensed Psychological Associate ("LPA") Tara B. Luellen, M.A. conducted a consultative psychological evaluation of plaintiff on 25 September 2013. See Tr. 392. Both she and psychologist E.J. Burgess, Psy.D. signed the report on the evaluation (Tr. 392-96), dating their signatures 1 October 2013 (Tr. 396). The ALJ summarized the report as follows:

On September 25, 2013, the claimant underwent a consultative psychological evaluation by Tara Luellen, M.A. She reported that she did not sleep well and had nightmares. She stated that she was able to cook, clean, and complete her hygiene routine independently. During the day, she stated that she would watch television and some days she did not get out of bed. The claimant stated that she saw her cousin, sister, daughter, and son regularly, but denied having friends and said that she does not really have fun anymore. She reported that she was seeing a psychiatrist for therapy and medications since January 2012. The claimant was diagnosed with bipolar disorder not otherwise specified and PTSD. A service plan indicated that the claimant was being treated for an alcohol-related disorder, depressive disorder not otherwise specified, and anxiety disorder. On mental status examination, she was cooperative and answered all questions asked of her. Her speech was of normal volume, but it was pressured, and she spoke with a lisp. She was goal-directed and coherent, and she offered information to the examiner spontaneously. The claimant was anxious. She had a good sense of humor, but seemed nervous during the evaluation and exhibited low self-esteem and low confidence. The claimant had appropriate energy to complete tasks asked of her. Her thought processes was logical, coherent, and reality based. Ms. Luellen diagnosed the claimant with PTSD, bipolar disorder, and panic disorder. She was assessed with a GAF of 50. Ms. Luellen opined that the claimant was able to understand, retain, and follow simple instructions and sustain her attention to perform simple tasks. Ms. Luellen stated that because o[f] her anxiety, the claimant had difficulty relating to the examiner and this would mean that she would have difficulty relating to others in a work environment. Furthermore, the claimant may have difficulty tolerating the stress and pressure associated with her day-to-day work activity. (Exhibit 4F)

Tr. 28 ¶ 5.

The ALJ then stated his evaluation of the report:

The undersigned finds that the opinion of Ms. Luellen to be internally inconsistent. Ms. Luellen indicated during evaluation that the claimant was cooperative, answered all questions, and had a good sense of humor. However, Ms. Luellen's conclusion that the claimant had difficulty relating to her and this would mean that she would have difficulty relating to others in a work environment is not supported by the evaluation. Therefore, the undersigned gives partial weight to this opinion. In addition, the opinion that the claimant would have difficulty tolerating stress and pressure associated with day-to-day work activity is vague and inconclusive with no support.

Tr. 28 ¶ 5.

Two deficiencies are apparent on the face of the evaluation. One is that the ALJ does not address whether he is treating the report as the opinions of Dr. Burgess as an acceptable medical source and LPA Luellen as an other source, or solely those of LPA Luellen as an other source. As previously discussed, a different standard applies if the report is treated as the opinions of an acceptable medical source. The report should have been addressed as the opinions of an acceptable medical source since Dr. Burgess signed it. The ALJ's silence leaves the court to wonder what standard the ALJ did apply and his underlying rationale, particularly since, as will be discussed below, he treated another evaluation signed by both a psychiatrist—an acceptable medical source—and an other source as solely the opinions of the other source.

Second, the ALJ expressly assigned weight to only one opinion in the report—the opinion that plaintiff did not relate to LPA Luellen and therefore would not relate to others in the work environment. He discusses another opinion in the report—that plaintiff would have trouble tolerating stress and pressure of day-to-day work activity—but does not specify the weight assigned. The ALJ is silent as to the other opinions expressed in the report. They include the opinion that "[o]verall, Ms. Tant was able to understand, retain, and follow most simple instructions and sustain her attention to perform simple tasks, although she needed lots of encouragement to do so due to her low confidence level." Tr. 395.

As to the alleged internal inconsistency, it is not all apparent that any exists. The finding that plaintiff was "cooperative, answered all questions, and had a good sense of humor" did not preclude a finding that plaintiff had difficulty relating to LPA Luellen and would therefore have the same problem with others in a work environment. Tr. 28 ¶ 5. In finding the inconsistency, the ALJ fails to state the basis for LPA Luellen's determination that plaintiff did not relate to her, which he had referred to in summarizing the evaluation, namely, her anxiety. Specifically, the report states in the "SUMMARY AND CONCLUSION" section: "Because of her anxiety, she had difficulty relating to the examiner and this would also mean that she would have difficulty relating to others in a work environment." Tr. 396 (emphasis added). Everyday experience teaches that a person can exhibit each of the positive behaviors toward another person that the ALJ specifies while still being anxious to the point that the anxiety impedes the relationship with the other person. More significantly, though, that is the professional opinion expressed in the reports to plaintiff.

Further, the opinion is supported by the evaluation, contrary to the ALJ's finding that it is not. Plaintiff's cooperation, responsiveness to all questions, good sense of humor, and anxiety are all discussed in the body of the report, not simply in the "SUMMARY AND CONCLUSION." For example, two sentences after noting that plaintiff "cooperated with the examiner answering all questions asked of her," the report states: "Ms. Tant's emotional state seemed mostly anxious. She was polite and had a good sense of humor, but seemed nervous during the evaluation and exhibited low self-esteem and low confidence." Tr. 394. The report also states of plaintiff: "She also exhibited pressured speech and fanned herself frequently because she reported that she has hot flashes. Otherwise, she was polite and had a good sense of humor . . . ." Tr. 392. In addition, the report notes pertinent statements made by plaintiff during the evaluation, including the following: "She told the examiner that in general she does not like to be around people and feels anxious a lot" (Tr. 392) and "She tells the examiner that she was having lo[t]s of anxiety during the mental status exam" (Tr. 394). By finding inconsistency where these mental health professionals—based on LPA Luellen's well-documented, firsthand interaction with plaintiff—did not, the ALJ again appears to be improperly treading in an area for which he lacks the requisite expertise. See Rohan, 98 F.3d at 970.

Spelled "loss" in the original, but the court deems the context to indicate that "lots" was intended.

The court also finds troubling the ALJ's characterization as "vague and inconclusive with no support" (Tr. 28 ¶ 5) the opinion in the report, as stated in it, that "due to her anxiety, depressive symptoms, low confidence and low self-esteem, [plaintiff] may have difficulty tolerating the stress and pressure associated with day-to-day work activity, which is based on her presentation and performance during the current evaluation" (Tr. 396). Use of the term "may" in this opinion could arguably be deemed vague, but in reciting the opinion in his decision, the ALJ deemed the report to be stating that plaintiff "would" have such difficulty. Tr. 28 ¶ 5. Otherwise, it is not apparent in what sense this opinion is vague and inconclusive. While the opinion could ostensibly be deemed vague and inconclusive for not identifying the degree of difficulty plaintiff would have, the ALJ did not specify this as the basis for the purported vagueness and inconclusiveness. There is certainly no vagueness or inconclusiveness as to the basis for the opinion that plaintiff would have difficulty tolerating stress and pressure: the report includes the grounds as part of the opinion itself, which are, again, plaintiff's "anxiety, depressive symptoms, low confidence and low self-esteem." Tr. 396. And the ALJ's statement that this opinion has "no" support is belied by the support provided in the report itself, as previously discussed.

The deficiencies in the ALJ's evaluation of the opinion of LPA Luellen and Dr. Burgess warrant remand of this case. The incompleteness of the ALJ's evaluation, as discussed, necessarily frustrates meaningful review. See Radford, 734 F.3d at 295. Further, for the reasons discussed, the court cannot say that the findings the ALJ did make are supported by substantial evidence. This deficiency is not harmless because proper evaluation of the opinions subject to these findings could reasonably result in a different assessment of them and thereby plaintiff's statements regarding her mental impairments and associated limitations, and her RFC. Garner, 436 F. App'x at 226 n.*

3. 18 August 2015 Questionnaire by LPC Croswell and Dr. Buonaccorsi

LPC Desiree Croswell completed a mental impairment questionnaire regarding plaintiff dated 18 August 2015. Tr. 489-93. Dr. Buonaccorsi signed a handwritten notation at the end of the questionnaire dated 25 February 2016 reading: "I have reviewed and agree with Ms. Croswell['s] conclusions and assessment." Tr. 493.

The ALJ summarized the completed questionnaire as follows:

In a mental health impairment questionnaire dated August 18, 2015, Ms. Croswell stated that the claimant was seen one to two times a month. According to Ms. Croswell, the claimant experienced panic attacks in social situations nearly every time she has an interaction with others. Ms. Croswell indicated that it was unknown if the claimant had any degree of limitation in understanding and remembering one to two step instructions. Ms. Croswell indicated that the claimant had marked limitation in every aspect of concentration and persistence, social interactions, and adaptation. Ms. Croswell indicated that the claimant's symptoms and limitations apply as far back as January 1, 2008. (Exhibit 10F, 11F, 12F, 13F)

Tr. 28-29 ¶ 5.

The ALJ's evaluation of the questionnaire reads:

The undersigned finds that the opinion of Ms. Croswell to be internally inconsistent. Ms. Croswell noted that the claimant's symptoms and limitations apply as far back as January 1, 2008; however, she has only treated the claimant since April 2014. The undersigned gives little weight to Ms. Croswell's box checked opinions with little analysis or explanation. This box checked limitations are not consistent with her record of treatment and not supported by the evidence of record. In addition, a licensed professional counselor is not an acceptable medical source, and the opinion i[s] not a medical source statement.

Tr. 29 ¶ 5. The evaluation is replete with errors.

One error regarding the initial finding that the questionnaire is internally inconsistent is that the ALJ gives April 2014 as when LPC Croswell began treating plaintiff. LPC Croswell states in the questionnaire that she began treating plaintiff on 29 October 2014 (Tr. 489 no. 1b.). There is substantiation for this statement in the record. The earliest document by LPC Croswell in the record appears to be a clinical assessment summary bearing the 29 October 2014 date. Tr. 438-48. In fact, it is this record that the ALJ appears to be discussing when describing plaintiff's treatment by LPC Croswell. Compare Tr. 28 ¶ 5 with Tr. 438. The remaining records by LPC Croswell are therapy notes from 5 November 2014 to 16 September 2015. Tr. 507-19. The ALJ cites no evidence and the court finds none showing that LPC Croswell began treating plaintiff in April 2014.

LPC Croswell erroneously put this date on the line for the date of the most recent exam and put 23 June 2015 on the line for the date of first treatment by LPC Croswell. The record substantiates that 23 June 2015 was the date of the most recent visit before the questionnaire. See Tr. 517 (note on office visit by plaintiff with LPC Croswell).

It may be that the ALJ was erroneously referencing what appears to be the initial record of treatment by Dr. Buonaccorsi, an evaluation and management note dated 23 April 2014. Tr. 485-87.

More significantly, the opinion that plaintiff's symptoms and limitations apply as far back as 1 January 2008 is not inconsistent with LPC Croswell not having begun treatment until 2014, whether in April or October of that year. The ALJ's apparent presumption that a healthcare provider cannot properly offer an opinion about a patient's condition prior to the date the provider began treating the patient is facially false.

Moreover, here, the record is replete with references to plaintiff's psychological problems beginning after she was raped at age 15. See, e.g., Tr. 325, 355, 372, 392, 443, 513, 520. The records containing such references include LPC Croswell's 29 October 2014 clinical assessment summary. See Tr. 438. The ALJ himself states in his ostensible discussion of LPC Croswell's 29 October 2014 clinical assessment summary: "The claimant stated that she received mental health services when she was 16 years old, however, she was non-compliant and did not want to talk about her trauma." Tr. 28 ¶ 5 (ostensibly referencing Tr. 438). Since plaintiff was born in 1959 (see Tr. 30 ¶ 7), the rape and plaintiff's resultant psychological problems began around 1974, well before 1 January 2008.

Notably, the 1 January 2008 date as to which LPC Croswell opined was not one she selected. It was the date specified in the question she was answering: "In your best medical opinion, do your patient's symptoms and related limitations as detailed in this questionnaire apply as far back as: 01/01/2008 ?" Tr. 493 no. 14a.

The questionnaire goes on to ask, "If not, as of what date do your patient's symptoms and related limitations as detailed in the questionnaire apply?" Tr. 493 no. 14b. Because LPC Croswell opined that plaintiff's symptoms and related limitations apply as far back as 1 January 2008, she appropriately did not respond to this question.

The ALJ's finding that he gave little weight to LPC Croswell's "box checked opinions with little analysis or explanation" is ambiguous. Tr. 29 ¶ 5. By its terms, this finding does not apply to all box checked opinions, but only to those with "little analysis or explanation." Tr. 29 ¶ 5. It is unclear whether the ALJ's finding applies to the response to question no. 10. It reads: "Does your patient experience episodes of decompensation or deterioration in a work or work-like setting which causes them to withdraw from the situation and/or experience an exacerbation of symptoms?" Tr. 491. LPC Croswell answered "Yes" and, pursuant to the instruction to explain, stated: "If so, please explain," LPC Croswell stated: "Client experiences panic attacks in social situations nearly every time she has an interaction with others, client has left past jobs due to severe anxiety." Tr. 491. It is unclear whether or not the ALJ deemed this statement to constitute "little analysis or explanation." Tr. 29 ¶ 5.

The questionnaire also lists diagnoses of plaintiff (Tr. 489 nos. 2a., 2b., 3) and the signs and symptoms previously checked that were found the most frequent and/or severe (Tr. 491 no. 7). None of these items are in check box format. To the extent they are deemed opinions, the ALJ failed to address them as well. --------

The ALJ's further finding that the questionnaire is not a medical source statement is erroneous. "Medical source statements are medical opinions submitted by acceptable medical sources." Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *3 (2 July 1996). The ALJ reasons that the questionnaire is not a medical source statement because, as a licensed professional counsellor, LPC Croswell is not an acceptable medical source. While it is true that LPC Croswell is not an acceptable medical source, Dr. Bounaccorsi is. 20 C.F.R. §§ 404.1513(a), 416.913(a). As previously noted, he expressly "agreed with" LPC Croswell's "conclusions and assessment." Tr. 493. By virtue of Dr. Buonaccorsi's adoption of the completed questionnaire, it became a medical source statement and was subject to the standard for opinions of an acceptable medical source, which could potentially accord it greater weight than the opinions of a source who is not an acceptable medical source, but rather an other source. The fact that Dr. Buonaccorsi signed the questionnaire about six months after LPC Croswell completed it does not deprive it of the nature of a medical source statement, although it could conceivably bear on the weight due it.

The deficiencies in the ALJ's evaluation of the questionnaire by LPC Croswell and Dr. Buonaccorsi require remand. The finding on box check opinions is ambiguous, precluding meaningful review. See Radford, 734 F.3d at 295.

The finding on inconsistency lacks the support of substantial evidence of record for the reasons discussed, and the finding as to the medical source statement status of the questionnaire is based on an improper legal standard. The court cannot say these errors are harmless because absent them the weight given the questionnaire could reasonably be different. The ALJ's determination on plaintiff's statements regarding her impairments and the associated limitations, and her RFC could thereby be different. Garner, 436 F. App'x at 226 n.*

The fact that there are errors in three of the five findings the ALJ made regarding the questionnaire reinforces the need for remand. The necessity for remand as to this and the other deficient evaluations discussed is also accentuated by their multiplicity. As noted, they comprise four of the five sets of examining source opinions of record and all but one of the sets of opinions by treating sources.

V. CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 11) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 16) for summary judgment be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 20 August 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).

Any response to objections shall be filed within 14 days after service of the objections on the responding party.

This 6th day of August 2018.

/s/_________


James E. Gates


United States Magistrate Judge