Opinion
No. 7:16-CV-400-D
01-17-2018
CRYSTAL G. CAMPBELL, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-23, -27] pursuant to Fed. R. Civ. P. 12(c). Claimant Crystal Campbell ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for Supplemental Security Income ("SSI") payments. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI on March 29, 2011, alleging disability beginning June 1, 1990. (R. 349-55). The claim was denied initially and upon reconsideration. (R. 125-55). A hearing before an Administrative Law Judge ("ALJ") was held on March 14, 2013, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 99-124). A supplemental hearing involving the same parties was held on July 26, 2013, at which Claimant amended her alleged onset date to June 30, 2010, the date of her prior application for benefits. (R. 81-98). On September 17, 2013, the ALJ issued a decision denying Claimant's request for benefits. (R. 156-74). On September 12, 2014, the Appeals Council allowed Claimant's request for review and remanded the case to the ALJ for further proceedings. (R. 175-78). The ALJ held a third hearing on April 1, 2015 (R. 65-80), at which Claimant, represented by counsel, and a VE appeared and testified, and on June 3, 2015, the ALJ again denied Claimant's request for benefits (R. 39-64). The Appeals Council, after receiving additional evidence, denied Claimant's request for review on October 6, 2016. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred by failing to properly consider and weigh the opinion of Claimant's treating psychiatrist, Dr. Christopher Myers. Pl.'s Mem. [DE-24] at 19-30.
IV. ALJ'S FINDINGS
At step one, the ALJ found Claimant had not engaged in substantial gainful activity since her prior application date of June 30, 2010. (R. 44). Next, the ALJ determined Claimant had the severe impairments of diabetes mellitus, obesity, polycystic ovaries, affective disorder, mood disorder, and anxiety, and the non-severe impairments of acanthosis nigricans, borderline thyroid disorder, gastroesophageal reflux disease, and migraines. (R. 45). At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 45-47). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in moderate restriction in her activities of daily living, social functioning, and maintenance of concentration, persistence, or pace, with one to two episodes of decompensation of extended duration. (R. 46). Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity ("RFC") finding that Claimant had the ability to perform light work with the following restrictions:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 416.967(b).
The claimant cannot climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs and occasionally crouch. She must avoid working at unprotected heights. Additionally, the claimant is limited to simple, routine, repetitive tasks in an environment where changes are infrequent and are introduced gradually and where there is no interaction with the general public.(R. 47-57). In making this assessment, the ALJ found Claimant's statements about her limitations were not entirely credible. (R. 53). At step four, the ALJ concluded Claimant had no past relevant work. (R. 57). At step five, upon considering Claimant's age, education, work experience and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 57-58).
V. DISCUSSION
A. The ALJ's Evaluation of Dr. Myers' Opinion
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." S.S.R. 96-8p, 1996 WL 374184, at *7. The RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id.; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 416.927(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" it is given controlling weight. Id. However, "[i]f 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.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). The weight afforded such opinions must be explained. S.S.R. 96-2p, 1996 WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).
Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore still apply to this claim. 82 Fed. Reg. 15263-01 & 15263-02 (Mar. 27, 2017).
Dr. Myers, Claimant's treating psychiatrist since September 2011, provided an opinion in April 2015, which stated in relevant part:
Ms. Campbell suffers from severe anxiety and depression - Panic Disorder, Generalized Anxiety Disorder, Social Anxiety Disorder, and Major Depressive Disorder. She has a history of depression dating to the age of 15 and a history of panic attacks and severe anxiety dating to at least 2006. She first received treatment for depression and anxiety in 2009 and she has been in treatment since.
Ms. Campbell has been treated with several different medications since 2009, along with individual therapy at times. Her depression has improved with treatment but we have seen little improvement with regards to her anxiety. Ms. Campbell has a history of very poor occupational and social functioning. She has not been able to
maintain employment due to her anxiety and she typically does not leave her room, let alone the house, due to her anxiety. Thus interactions with others are quite limited. In addition to depression and anxiety, I have diagnosed Ms. Campbell with Unspecified Personality Disorder. This diagnosis is given based upon Ms. Campbell's history of poor interpersonal functioning and affective instability, in addition to other traits. It is important to note this diagnosis is given based on a long-standing pattern of personality traits, present before the onset of her depression and anxiety.(R. 753). Dr. Myers also filled out a form listing Claimant's diagnoses as Generalized Anxiety Disorder, Social Anxiety Disorder, Agoraphobia, Panic Disorder, Major Depressive Disorder, and Unspecified Personality Disorder. (R. 754). Dr. Myer suggested that due to Claimant's mental illness she experiences mild restrictions in activities of daily living and extreme difficulty in maintaining social function; her ability to understand, remember, and carry out simple or detailed instructions was not impaired; her ability to maintain attention and concentration, accept supervision, and get along with coworkers was moderately impaired; and her ability to work with others and interact appropriately with the general public was extremely impaired. Id.
In my professional opinion, Ms. Campbell's prognosis is guarded. Given her lack of response to treatment over the past six years, I anticipate more pervasive struggles with depression and particularly with anxiety.
The ALJ assigned little weight to Dr. Myers' April 2015 opinion, explaining as follows:
The undersigned accords this opinion little weight, as it is inconsistent with Dr. [Myers'] treatment notes and the other medical evidence of record. While Dr. [Myers'] recent treatment notes document the claimant's ongoing symptoms, they also show a lack of medication compliance. Specifically, the claimant would not fill a prescription or she would discontinue taking a medication. She would not notify Dr. [Myers] of her discontinuance or side effect complaints and she would not follow up for months at a time on occasion. Despite such inconsistency, the claimant reported some improvement in her symptoms with compliance with the sole use of Clonazepam. (Exhibits 17F and 18F). As stated above, the claimant did not exhibit severe symptoms upon examination with Dr. [Myers], which indicates that he relied heavily on her subjective reports. (Exhibits 9F, 11F, 17F, and 18F). Overall, Dr. [Myers'] treatment notes do not support his low GAF score assignments or his opinions of such severe limitations.(R. 56). In sum, the ALJ provided two reasons for discounting Dr. Myers' opinion: the treatment records indicate Claimant was at times non-compliant with her mediations and reported some improvement in her symptoms with compliance taking Clonazepam; and Claimant did not exhibit severe symptoms on examination, which indicates Dr. Myers relied heavily on her subjective reports. (R. 56).
Claimant contends that the ALJ failed to appropriately consider the relevant factors when evaluating Dr. Myers' opinion, such as Dr. Myers' double board certifications in psychiatry and forensic psychiatry, his more than three-year treatment relationship with Claimant, and the fact that he examined her personally on eight separate occasions. Pl.'s Mem. [DE-24] at 22. Claimant further asserts that Dr. Myers' opinion is well-supported and consistent with the record as a whole, including his own treatment notes, medical records from another mental health provider, the opinions of Dr. Farmer, a consultative examiner, and the Claimant's own testimony. Id. at 22-24. Claimant is correct that the length of Dr. Myers' treatment relationship with Claimant, that he examined her several times, and that Dr. Myers is a specialist, are relevant considerations that lend support to Dr. Myers' opinion under the applicable factors. See Johnson, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527). However, "[i]f 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. Thus, the supportability and consistency factors, on which the ALJ relied in discounting Dr. Myers' opinion, are paramount in this case.
The ALJ first finds Dr. Myers' opinion unsupported due to "medication non-compliance." (R. 56). The ALJ also cites Claimant's non-compliance in finding her testimony regarding the severity of her symptoms not entirely credible:
The undersigned finds that the claimant has been prescribed and has taken appropriate medications for the alleged impairments but the medical records reveal that the medications have been relatively effective in controlling the claimant's symptoms when the claimant was compliant. Specifically, treatment notes from January, April, and December 2011, February 2012, and April, June, and December 2013, documented improvement in the claimant's symptoms with the use of medications. While the undersigned notes that the claimant still experienced some symptoms, the medications provided a significant improvement. (Exhibits 9F and 11F). The record also shows that the claimant's noncompliance with medication and her appointments seemed to contribute to her ongoing symptoms. Treatment notes from December 2010, October 2011, March, June, and October 2012, December 2013, and June 2014 through February 2015, showed that the claimant was either not taking any medication, not filling prescriptions, not starting a prescribed medication, only taking one medication out of several prescribed, discontinuing medications and not notifying her physician, and missing several appointments. While the claimant reported side effects as the reason for discontinuing some medications, the claimant never informed her physician prior to her next scheduled appointment; therefore, months would pass where the claimant was not following a treatment regimen. Overall, the record does not show an extended period of time when the claimant was fully compliant. Although the undersigned acknowledges the claimant's testimony and reports in the record suggesting she cannot afford adequate medical care and/or medications, there is no evidence to demonstrate that she has sought help through the multitude of channels available for indigent individuals, such as those offered by charities. (Exhibits 9F, 11F, 17F, and 18F). Despite her frequent noncompliance, the claimant showed significant improvement in her symptoms during the short periods of time she followed a medication and therapy regimen. (Exhibits 9F an[d] 11F).(R. 54). The ALJ also discussed at length Claimant's mental health treatment notes (R. 49-53), which do indicate that Claimant failed to consistently take her medications as prescribed, missed some appointments, did not pursue some recommended therapy, and that there were brief periods when Claimant did experience improvement.
Treatment records from ACT Medical Group/NC Mentor from the period November 2010-April 2011 indicate that Claimant saw improvement in her depression, panic attacks, and irritability once she began taking her medications, and it was noted that Wellbutrin and Klonopin were helpful for overall mood and anxiety. (R. 659-67). Claimant was referred to Dr. Myers' practice in September 2011, after presenting to the emergency room having taken five Klonopin in an attempt to calm her anxiety and fearing she had overdosed, but she denied it was a suicide attempt and exhibited no overdose symptoms. (R. 619, 623-24). Claimant reported to Dr. Myers experiencing severe panic attacks, rage incidents, and being unable to work due to social anxiety, but also reported that she had been treating at NC Mentor for about a year, was taking Wellbutrin XL, Klonopin, and Ambien, she experienced no side effects from these medications, they made her feel "more mellow," and she had refills on her medications that allowed her to go without any visits for the past six months. (R. 619). Dr. Myers observed Claimant had experienced "a positive but incomplete response" to her medication regimen, he believed she would not achieve a "complete response given she is not currently being treated with a SSRI/SNRI" for her anxiety, and he continued her current medications, prescribed Remeron, and recommended individual therapy. (R. 621-22). The following month, Claimant returned for a scheduled follow-up with a nurse practitioner, but had not taken Remeron due to potential weight gain (Claimant weighed 328 pounds at the time), refused to take an SSRI due to the potential for sexual side effects, and her dosage of Wellbutrin was increased but Claimant was cautioned about associated increased anxiety. (R. 611-14). At Claimant's next follow-up appointment in December 2011, she reported "doing ok," explained that she was sleeping all the time with the increased dosage of Wellbutrin but that taking only 1.5 pills achieved a good effect on her mood, she had demonstrated rage at her mother the day prior by kicking things around the house, she had not started individual therapy as recommended because she had changed her phone number and could not be contacted, and she was continued on her medications. (R. 615-18). In February, 2012, Claimant again saw Dr. Myers and reported feeling "ok," that she was getting a little more sleep, had improved energy, attention, and concentration, but reported continued anxiety (6/10) and that she had to take Klonopin to leave the house. (R. 607-10). Claimant was still not taking Remeron, but was compliant with her remaining medications. (R. 607). Dr. Myers again noted that he did not anticipate improvement in Claimant's anxiety on her current medications and would try Citalopram and an increased dosage of Wellbutrin. (R. 609). At her March 2012 follow up, it was noted that Claimant had not started Citalopram because she could not afford it and she was concerned regarding the potential sexual side effects, she continued Wellbutrin but had not taken Clonazepam for a month due to finances and she was irritable, and she had not started individual therapy. (R. 603-06).
Claimant was advised to follow up in 6-8 weeks but did not return until June 2012. (R. 599-602). She reported that she could not afford her medications, had been off Wellbutrin since March, never filled the Citalopram prescription, was stretching out her Clonazepam prescription from March, and she reported insomnia, depression, and rage. (R. 599). The nurse practitioner talked with Claimant about "any options for medication payment" and again gave her contact information to schedule individual and group therapy. (R. 602). Claimant was advised to follow up in 6-8 weeks, but did not return for four months. (R. 595, 602). At her October 2012 visit with Dr. Myers, Claimant reported that her depression was "getting a lot better," and that although when she came off her medications she could not get out of bed, hardly left her room, was isolated, and experienced panic and rage attacks, she had become compliant with Wellbutrin and Clonazepam, did not restart Citalopram because it caused excessive fatigue, was feeling better, had pretty good energy, attention, concentration, and appetite, but still did not go out and was experiencing panic attacks once a week (although not to the point where she was "freaking out screaming"). (R. 595). Dr. Myers' impression was that when Claimant stopped her medications, her depression and anxiety worsened, that restarting her medications improved her symptoms but she was still isolated to her house, she needed more aggressive medications to progress, and he prescribed Cymbalta. (R. 597). Claimant was directed to follow up in 6-8 weeks but missed her December 2012 appointment. (R. 594).
Claimant did not return for a follow up appointment until April 2013, when she reported improved depression, but also isolation and severe panic attacks, she was taking her Clonazepam infrequently, and she stopped taking Cymbalta due to "shakes." (R. 714). Dr. Myers again explained the role of SSRIs in her treatment and prescribed Sertraline in addition to her other medications. (R. 717-18). In June 2013, Claimant reported compliance with medications, but that she was sleeping 16 hours a day; Dr. Myers discontinued Sertraline, prescribed Pristiq as an alternative, and continued Wellbutrin and Clonazepam. (R. 709-13). In December 2013, Claimant indicated she missed her last appointment because she slept through it, she had started taking Viibryd samples, which improved her anxiety and depression, but caused nausea, she had not started Topomax or taken any other medications in two months because she could not afford them, and she was encouraged to resume medications as financially able and was given Viibryd samples. (R. 721-24). Claimant missed her February 2014 appointment and did not return for treatment until June 2014. (R. 719, 749). Claimant had stopped taking Viibryd due to gastrointestinal side effects and had not taken Wellbutrin in six months due to cost, but was taking her migraine medication and Clonazepam. (R. 749). Claimant was counseled at length regarding the need for compliance with medications, appointments, and therapy service in order to receive continued medication management. (R. 749-52). In August 2014, Claimant expressed an inability to afford her Wellbutrin, reported continued depression and panic attacks but that Clonazepam provided relief and gave her a sense of calm, and Dr. Myers changed her medication to Brintellix and continued Clonazepam. (R. 745-48). At her September 2014 appointment, Claimant reported that she stopped taking Brintellix because it made her enraged and that she was sleeping 16 hours a day; Claimant agreed to try Fetzima. (R. 741-44). In October 2014, Claimant reported improved mood but continued anxiety and that she was unable to tolerate Fetzima, so Dr. Myers prescribed a trial of Amitriptyline and continued Clonazepam. (R. 735-40). In December 2014, Claimant stated she could not afford Amitriptyline, was concerned about potential side effects of weight gain and aggression, and was taking Clonazepam as needed; she was encouraged to begin Amitriptyline as prescribed. (R. 731-34).
In February 2015, Claimant reported that she was "good" and feeling calmer due to taking Clonazepam before leaving home, her depression was not bad and she was getting up and doing things, but she also reported having poor impulse control and more intense anger and rage with daily panic attacks. (R. 726). Dr. Myers discontinued Amitriptyline because Claimant was not taking it, and prescribed Wellbutrin XL. (R. 728). The following month, Claimant reported she was compliant with her medications and noted significant improvement with depression and anxiety symptoms after restarting Wellbutrin, Claimant was generally taking Klonopin once daily, and had no reported side effects. (R. 760-63). In May 2015, Claimant reported taking her medications as prescribed, with more energy and no depression but with continued isolation (although she was more active in her home doing some cooking and cleaning), and Claimant was feeling better but experienced continued irritability and anger with no change in her anxiety level. (R. 755). Dr. Myers prescribed a trial of Buspar and continued Wellbutrin XL and Clonazepam.
The ALJ, when evaluating Dr. Myers' opinion, discussed Claimant's treatment records, considered the impact of Claimant's non-compliance with regards to medications, appointments, and therapy, and noted Claimant's statements that she was frequently unable to afford her medications, but concluded that there was no evidence Claimant pursued any free or low-cost options to obtain medications. (R. 49-54, 56). However, Claimant testified at the July 26, 2013 administrative hearing that she could not afford certain treatments and therapy and that, although she utilized the community clinic to obtain some care, her access was limited to going once or twice. (R. 88-90). Thus, Claimant did provide some evidence through her testimony that she pursued at least one avenue of free or low-cost medical care, a community clinic, but that her access there was limited. While this testimony was in response to a question from Claimant's attorney regarding her prescription for Metaformin, used to treat her diabetes, the ALJ did not take this opportunity to question Claimant as to whether she likewise pursued any free or low-cost options to obtain mental-health medications or therapy when she could not afford them. See Funderburk v. Astrue, No. 2:10-CV-852-CSC, 2012 WL 904682, at *8 (M.D. Ala. Mar. 15, 2012) ("Because the record simply was not developed with regard to the availability of free or low-cost medical treatment, the ALJ's conjecture that 'there are community and church services available' is not supported by the record."); cf. Fink v. Barnhart, No. 1:04-CV-266, 2006 WL 5435533, at *6 (W.D.N.C. Apr. 18, 2006) (noting the ALJ met his burden of production by his "pointed and exhaustive examination of plaintiff at the hearing" concerning the availability of care from churches and free clinics and plaintiff's assistance therefrom). Rather, here, the ALJ inferred, without sufficient inquiry, that Claimant's symptoms were not as severe as alleged because she was non-compliant with medications and had not pursued free or low-cost options.
Under Social Security Ruling 96-7p, such an inference is impermissible "without first considering any explanations that the individual may provide . . . that may explain infrequent or irregular medical visits or failure to seek medical treatment." 1996 WL 374186, at *7 (July 2, 1996); see Beasley v. Astrue, No. 7:10-CV-232-FL, 2012 WL 707091, at *4 (E.D.N.C. Mar. 5, 2012) (acknowledging that both parties argued and the magistrate judge correctly applied S.S.R. 96-7p to the ALJ's consideration of the claimant's lack of medical treatment for mental impairments and whether claimant's access to treatment was inhibited by cost). Thus, the ALJ "may need to . . . question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner," such as "[inability] to afford treatment and [lack of] access to free or low-cost medical services." 1996 WL 374186, at *7-8. "The inability to afford medical treatment is a sufficient reason for medication noncompliance." Taylor v. Astrue, No. 7:11-CV-162-FL, 2012 WL 3637254, at *6 (E.D.N.C. Aug. 1, 2012) (citing S.S.R. 96-7p, 1996 WL 374186, at *7-8), adopted by 2012 WL 3636923 (Aug. 22, 2012); see Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (claimant's inability to afford medication cannot be used as basis for denying benefits); Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) ("It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him"). The Ruling also explains that "[p]ersistent attempts by the individual to obtain relief of pain or other symptoms, such as by increasing medications, [or] trials of a variety of treatment modalities in an attempt to find one that works or that does not have side effects . . . may be a strong indication that the symptoms are a source of distress to the individual and generally lend support to an individual's allegations of intense and persistent symptoms." Id. at *7. The treatment notes summarized above reflect that Dr. Myers adjusted Claimant's medications numerous times in an attempt to alleviate her extreme anxiety but had little significant or long-term success. The ALJ should have further inquired as to what extent Claimant's medical non-compliance was caused by her inability to afford medications and treatment, including her access to free or low-cost prescriptions and services.
S.S.R. 96-7p was superseded by S.S.R. 16-3p, effective March 28, 2016, and thus still applies to this case.
Notwithstanding the ALJ's error, it may be harmless if the ALJ provided other good reasons for discounting Dr. Myers' opinion. The ALJ's second reason for discounting Dr. Myers' opinion was that he relied heavily on Claimant's subjective reports, which the ALJ found to be not entirely credible. (R. 53, 56). However, the ALJ's credibility determination with respect to Claimant's testimony regarding her mental health relied largely on Claimant's non-compliance and, therefore, is deficient for the reasons discussed above. As a result, the ALJ's finding regarding Dr. Myers' reliance on Claimant's subjective reports does not provide substantial evidence to support the reduced weight afforded Dr. Myers' opinion under the circumstances. (R. 54). Furthermore, Dr. Myers' opinion is consistent with the August 2010 and July 2011 opinions of Dr. Farmer, a consultative psychologist, who twice examined Claimant and determined that she was significantly limited in her ability to relate to co-workers or supervisors and to tolerate the stress and pressures of daily work due to her anxiety disorder and characterological problems. (R. 579, 698). Accordingly, where Claimant's frequent inability to afford her medications is uncontroverted in the record, and her access to and the extent to which she pursued free or low-cost options is not clear and was not explored by the ALJ, the ALJ's determination that Dr. Myers' opinion was not supported by his own treatment notes or consistent with the record as a whole is not supported by substantial evidence and remand is appropriate.
The ALJ's credibility determination also suffers from other deficiencies that likely impacted the RFC and should be addressed on remand. First, the ALJ's finding that Claimant's descriptions of her daily activities represent "a fairly active lifestyle" is wholly unsupported by the record, including the exhibits cited by the ALJ. (R. 53) (citing Exs. 4E, 5F, 7F, 9F, and 13F). Furthermore, this court has previously criticized the boilerplate explanation provided by the ALJ that Claimant's alleged limited daily activities could not be "objectively verified with any reasonable degree of certainty," but that even if they were limited as alleged, "it is difficult to attribute that degree of limitation to the claimant's medical condition, as opposed to other reasons, in view of the medical evidence and other factors discussed in this decision." (R. 53); see Thomas v. Berryhill, No. 4:16-CV-00015-D, 2017 WL 1047253, at *10 (E.D.N.C. Feb. 15, 2017) ("The Commissioner does not argue, nor is there any requirement, that a claimant's reported activities be verified with objective evidence in order to be credible. The Regulations simply state that a claimant's statements will be evaluated in relation to the objective medical evidence and other evidence."), adopted by 2017 WL 1049472 (Mar. 17, 2017). It is unclear what objective verification is required, and the regulations provide that the ALJ "will not reject [a claimant's] statements about the intensity and persistence of [a claimant's] pain or other symptoms or about the effect [a claimant's] symptoms have on [a claimant's] ability to work solely because the available objective medical evidence does not substantiate your statements." 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (finding "the ALJ's determination that objective medical evidence was required to support [the claimant's] evidence of pain intensity improperly increased her burden of proof.") (citations omitted). Moreover, as explained above, the "other factors discussed" by the ALJ with respect to Claimant's credibility regarding her mental health were non-compliance, and the ALJ's analysis in this regard was error. (R. 54). --------
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-23] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-27] be DENIED, and the case be remanded to the Commissioner for further proceedings.
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 January 31, 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her 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. Any response to objections shall be filed within 14 days of the filing of the objections.
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).
SUBMITTED, this the 17 day of January 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge