Opinion
C. A. 6:20-cv-03446-BHH-KFM
10-27-2021
Milton Gerald, Plaintiff, v. Kilolo Kijakazi, Commissioner of Social Security, Defendant.[1]
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) on November 8, 2019, alleging that he became unable to work on January 1, 2019 (Tr. 167-70). The application was denied initially (Tr. 94-101) and on reconsideration (Tr. 102-10) by the Social Security Administration. On April 14, 2020, the plaintiff requested a hearing (Tr. 125-26). On July 23, 2020, an administrative hearing was held at which the plaintiff, represented by counsel, and Robert Brabham, an impartial vocational expert, appeared and testified before the ALJ via telephone (Tr. 27-75). On August 3, 2020, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 12-23). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on September 22, 2020 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
The ALJ's decision records the application date as November 7, 2019 (Tr. 12).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on March 31, 2019.
(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of January 1, 2019, through his date last insured of March 31, 2019 (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the lumbar spine, depression, anxiety, post-traumatic stress disorder, history of polysubstance abuse (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he can occasionally climb ladders, ropes, or scaffolds and can frequently stoop, kneel, crouch, crawl, and climb ramps and stairs. He remains capable of tasks consistent with a reasoning development level of 2 or less as defined in the DOT in an environment requiring no more than occasional changes in work setting or duties. He can occasionally interact with supervisors,
co-workers, and the public. He will be off-task for 5% of the workday, exclusive of regularly scheduled breaks.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on June 4, 1965, and was 53 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant No. in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569 and 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from January 1, 2019, the alleged onset date, through March 31, 2019, the date last insured (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 6 99 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
In his initial brief, the plaintiff argues that the ALJ erred by (1) failing to include a function-by-function analysis in the mental residual functional capacity (“RFC”) assessment (doc. 20 at 5-6, 13-17); (2) failing to appropriately analyze opinion evidence from Sabrina D. O'Kennon, Ph.D. (id. at 6-9); (3) improperly discounting the plaintiff's testimony (id. at 9-13); and (4) failing to give substantial weight to the Veteran's Affairs (“VA”) Rating Determination (id. at 17-24). In his reply brief, for the first time, the plaintiff further asserts: (5) the ALJ erred by relying on the vocational expert (“VE”) testimony, because the identified jobs did not exist in significant No. in the national economy (doc. 24 at 12-15); and (6) the ALJ did not have lawful authority to hear and decide the plaintiff's claim (id. at 15-17). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 21 at 6-24).
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, Id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, Id. § 404.1545(a)(3).
Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC 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 in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he 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.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
In evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he can occasionally climb ladders, ropes, or scaffolds and can frequently stoop, kneel, crouch, crawl, and climb ramps and stairs. He remains capable of tasks consistent with a reasoning development level of 2 or less as defined in the DOT in an environment requiring no more than occasional changes in work setting or duties. He can occasionally interact with supervisors, co-workers, and the public. He will be off-task for 5% of the workday, exclusive of regularly scheduled breaks.(Tr. 16). The RFC was followed by a discussion of the record evidence by the ALJ (Tr. 16-18).
Mental RFC
The plaintiff asserts that the ALJ's RFC assessment did not contain a function by function analysis of his mental impairments nor did it adequately account for the plaintiff's moderate limitations in maintaining concentration, persistence, and pace (doc. 20 at 5-6, 13-17). The undersigned disagrees.
Here, at step two, the ALJ found that the plaintiff had moderate limitations in interacting with others as well as in concentrating, persisting, or maintaining pace (Tr.15). The ALJ noted the plaintiff's mental diagnoses as well as that the plaintiff testified during the hearing that he was not on anything for his mental impairments, although he had historically taken Buproprion (Tr. 15-16). The ALJ also noted that the limited record evidence supported his findings regarding the plaintiff's ability to interact with others and concentrate, persist, and maintain pace (Tr. 15-16).
In determining the plaintiff's RFC, the ALJ found that the plaintiff:
remains capable of tasks consistent with a reasoning development level of 2 or less as defined in the DOT in an environment requiring no more than occasional changes in work setting or duties. He can occasionally interact with supervisors, co-workers, and the public. He will be off-task for 5% of the workday, exclusive of regularly scheduled breaks.(Tr. 16). The ALJ concluded that this mental RFC accounted for the plaintiff's mental limitations, noting:
Mentally, the [plaintiff] carries a diagnosis of PTSD, with VA records further suggesting diagnoses of anxiety and depression. See Ex. B2F, B3F. It appears that the [plaintiff] has been on Buproprion (Wellbutrin) for these impairments historically, but with nothing at the present time per his testimony. Ex. B3F, hearing testimony. No. care was sought at or around the period at issue (aside from going for a C&P examination during August 2018.) The limited evidence here and elsewhere indicate that he struggles with interpersonal relations and indications of his issues with word finding during this exam result in restrictions to the [plaintiff's] ability to interact with others.
Reports of substance abuse problems both before and after the period under review suggest the [plaintiff's] poor coping skills require additional accommodation, which includes a reduction to simple, routine tasks in order to accommodate stress, as well as 5% off-task time, as well as a restriction on work requiring significant changes to the job. See, e.g., Ex. B2F/78, hearing testimony. He continues to drink a little less than a six-pack of beer per day. Hearing testimony. The lack of treatment or
complaint during or even surrounding the brief period at issue does not permit further limitations.(Tr. 17).
First, to the extent the plaintiff, in passing, asserts that the ALJ failed to provide a function by function analysis in formulating the RFC, the court finds this argument unavailing. As outlined and discussed in more detail, infra, with respect to the plaintiff's concentration, persistence, and pace limitations, the ALJ's decision contains a careful examination of the plaintiff's mental impairments and their affect on his ability to function. Indeed, the ALJ referenced treatment history outside the relevant period in formulating the RFC in light of the lack of treatment during or around the relevant period (see Tr. 16-18). Moreover, the plaintiff only asserted this error in passing - providing no reference to functions omitted by the ALJ. As such, the undersigned finds this assertion of error unpersuasive.
The plaintiff also asserts that the ALJ's RFC failed to account for the plaintiff's limitation in concentration, persistence, and pace (doc. 20 at 13-17). In Mascio v. Colvin, partially relied upon by the plaintiff, the Court of Appeals for the Fourth Circuit found it reversible error that the ALJ did not explain how the RFC accounted for a claimant's limitations in concentration, persistence, or pace. 780 F.3d 632, 635-38 (4th Cir. 2015) (noting that “[p]erhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. . . . But because the ALJ here gave no explanation, a remand is in order.” (internal citation omitted)). The instant matter, however, is distinguishable from Mascio: here, the ALJ's decision specifically addressed the plaintiff's mental impairments, including a limitation in the hypothetical presented to the vocational expert, appropriate limitations in the plaintiff's RFC, as well as a discussion of the limitation in the decision, as summarized above (Tr. 15-16, 17-18).
Moreover, as noted by the Commissioner, the Fourth Circuit has recently clarified its holding in Mascio, affirming in a published decision that Mascio
did not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC. On the contrary, [the court] explained that an “ALJ can explain why [a claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation” in the claimant's RFC.Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020) (citing and partially quoting Mascio, 780 F.3d at 638). The court went on to note:
In sum, and unlike in Mascio, the ALJ in this case addressed [the claimant's] lifelong, borderline intellectual disability, including her moderate limitations in concentration, persistence, or pace. The ALJ explained why the psychological evidence and [the claimant's] statements support a mental limitation to simple, routine, and repetitive tasks. And the ALJ included the mental limitation in the hypothetical question posed to the vocational expert. Moreover, while [the claimant's] severe impairments include her borderline intellectual functioning, she had been gainfully employed for decades despite her mental limitations. [Thus, ] the ALJ's findings and the mental limitation included in the RFC are sufficiently explained and supported by substantial evidence in the record.Id. at 122 (footnote omitted) (alterations added). As quoted above, circuit precedent does not require a limitation in the RFC just because there is a moderate limitation in concentration, persistence, and pace; thus, important to the analysis is whether the ALJ's decision explained the mental RFC findings. Here, the undersigned finds that the ALJ's decision did so.
The ALJ's decision contained a detailed discussion of the plaintiff's mental impairments and their corresponding effect on the plaintiff's RFC. For example, as quoted above, the ALJ specifically addressed the plaintiff's allegations - addressing both the limited record evidence as well as the plaintiff's subjective mental complaints (Tr. 17). Indeed, the plaintiff has not identified any mental status examinations (or other treatment) during the relevant period. Nevertheless, the ALJ also addressed the plaintiff's treatment records from prior to the relevant period (Tr. 16-18).
Of note, it appears as if the plaintiff may have misunderstood the ALJ's mental RFC in this matter - arguing that the plaintiff was only limited to “unskilled light work” and “simple, routine tasks” (doc. 20 at 15). As outlined above, the ALJ's mental RFC was far more detailed - including limitations to jobs with a reasoning development level of 2 or less; with only occasional changes in work setting or duties; only occasional interaction with supervisors, co-workers, and the public; and providing that the plaintiff would be off-task for 5% of the workday (outside of regularly scheduled breaks) (Tr. 16). Additionally, as quoted above, the ALJ's decision included a detailed summary of his determination that the plaintiff did not require additional limitations based upon the record evidence (Tr. 17). As such, in light of the foregoing, the court finds no error in the ALJ's explanation of the plaintiff's mental RFC, in compliance with Mascio and Shinaberry.
Subjective Complaints
The plaintiff also asserts that the ALJ erred in the consideration of the plaintiff's subjective complaints (doc. 20 at 9-13). The Fourth Circuit has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .
. . . .
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit panel held, “Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the plaintiff] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or so severe that it prevent[ed] him from working a full eight-hour day.” 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that “‘[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'” Id. at 564. The court further acknowledged:
While objective evidence is not mandatory at the second step of the test, “[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers.”Id. at 565 n.3 (quoting Craig, 76 F.3d at 595); see Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. § 404.1529(c)(2) (“We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”).
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Furthermore, “a formalistic factor-by-factor recitation of the evidence” is unnecessary as long as the ALJ “sets forth the specific evidence he relies on” in evaluating the claimant's subjective symptoms. See Gonzales v. Saul, C/A No. 6:19-cv-02895-MGL-KFM, 2020 WL 7890454, at *16 (D.S.C. Dec. 4, 2020) (internal quotation marks omitted) (citing and partially quoting White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001)), Report and Recommendation adopted by 2021 WL 37655 (D.S.C. Jan. 5, 2021). In making these determinations, the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Because this application was adjudicated after the date SSR 16-3p became applicable, the court has analyzed the plaintiff's allegations under that ruling. Id. at *13 n.27. The court observes that SSR 16-3p discontinues use of the term “credibility, ” but “‘the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record.'” Best v. Berryhill, C. A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (alteration in original) (quoting Sullivan v. Colvin, C. A. No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)); see also Keaton v. Colvin, C. A. No. 3:15-cv-588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) (“Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term ‘credibility' but does not alter the substantive analysis.”).
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c).
Here, the undersigned finds no error in the ALJ's consideration of the plaintiff's subjective complaints. In the RFC assessment, the ALJ set out the plaintiff's subjective complaints in detail (Tr. 16-18). The ALJ then found that while the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, his statements concerning the intensity, persistence, and limiting effects of the symptoms were “not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [the] decision” (Tr. 17).
In analyzing the appropriateness of the RFC assessment in light of the plaintiff's subjective complaints, the ALJ noted:
The [plaintiff] has alleged an onset date in January 2019, and the date last insured is March 2019. There are no office records, hospitalizations, or other medical notes in the file from that period. Even before this period, there remains little evidence of treatment, save only for a “suspected” fibula fracture in early 2018 (Ex. B2F/33), a new diagnosis of diabetes mellitus in July 2018 (also Ex. B2F/34), and a single C&P examination of [mental health] conditions in August 2018 that yields little aside from the [plaintiff's] subjective complaints (Ex. B2F/78). There is very little other evidence linked to the alleged disability period.(Tr. 17). This analysis was followed by a breakdown of the available record evidence (Tr. 17-18).
The plaintiff argues that the ALJ erred by not mentioning large portions of the plaintiff's hearing testimony and that the ALJ used portions of the hearing testimony out of context (doc. 20 at 9-12). The court disagrees. First, there are many references in the decision to the plaintiff's hearing testimony (Tr. 16-18). Moreover, as required by SSR 16-3p, the ALJ included a detailed analysis of the plaintiff's subjective complaints, an examination of his activities of daily living, a detailed summary of his medical treatment, and a detailed analysis of the limited treatment during the relevant period in finding that the plaintiff's subjective complaints were not entirely consistent with the record evidence. Further, the plaintiff's argument appears to request that the court re-weigh the record evidence and find that the ALJ should have found the plaintiff's allegations consistent with the record evidence. However, such a re-weighing of evidence is beyond the purview of substantial evidence review. The plaintiff has not identified any other error with respect to the ALJ's evaluation of the plaintiff's subjective complaints; as such, based upon the foregoing, the undersigned finds that the ALJ appropriately evaluated the plaintiff's subjective complaints, as required by SSR 16-3p.
Medical Source Statement
The plaintiff also argues that the ALJ failed to appropriately evaluate opinion evidence from Dr. O'Kennon as part of a Compensation and Pension exam (“C&P exam”) for the Department of Veteran's Affairs (“VA”) (doc. 20 at 7-9). For applications filed on or after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. § 404.1520c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. at § 404.1520c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. § 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. Id. § 404.1520c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. § 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2).
On August 20, 2018, Dr. O'Kennon, a clinical psychologist, as part of a C&P examination for the VA, found that the plaintiff had diagnoses of PTSD, alcohol use disorder (severe), and cocaine use disorder. The plaintiff had a total occupational and social impairment caused by all of his disorders. Dr. O'Kennon noted that the plaintiff struggled with homelessness, had poor familial relationships, did little besides drinking, and enjoyed talking with a pastor. Dr. O'Kennon noted that the plaintiff reported drinking as much alcohol as he could afford or tolerate and that he randomly used cocaine. The plaintiff used cannabis, but his finances limit how much he was able to use. Dr. O'Kennon reported that the plaintiff's symptoms included a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a worklike setting), inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), and persistent danger of hurting self or others. Dr. O'Kennon noted that the plaintiff was on time for his evaluation and was adequately dressed and groomed. The plaintiff was friendly with good eye contact, and his affect was noted as “more chipper than one would expect given the content.” The plaintiff was nervous and had a hard time with word finding and with articulating a thought or expanding on a question asked. The plaintiff was fully oriented and denied homicidal ideation, but did endorse chronic suicidal ideation without intent or plan (Tr. 333-35).
The ALJ considered the opinion by Dr. O'Kennon and found it not persuasive, noting:
The VA C&P examination for PTSD, alcohol and cocaine use disorders at Ex. B2F/78 has been considered. The finding of “total occupational and social impairment” is suggested. This is not persuasive as this is a conclusion on matters reserved to the Commissioner. Moreover, the lack of treatment or complaint over time-even during the time preceding the brief period under consideration-would not support such a conclusion, especially from January 2019 to March 2019, the period under review here.(Tr. 18).
The plaintiff argues that the ALJ erred by noting the plaintiff's lack of treatment during the relevant period in rejecting Dr. O'Kennon's opinion (doc. 20 at 7-9). The undersigned disagrees. As an initial matter, under the amended regulations, statements on issues reserved to the Commissioner are “inherently neither valuable nor persuasive.” 20 C.F.R. § 404.1520b. Additionally, the amended regulations note that the Commissioner “will not provide any analysis about how we considered such evidence in [the] determination or decision, even under § 404.1520c ” including “statements that [the plaintiff is or is not] disabled, blind, able to work, or able to perform regular or continuing work.” 20 C.F.R. § 404.1520b(c). Moreover, despite the foregoing regulations, the ALJ's decision did address the consistency and supportability of Dr. O'Kennon's opinion, noting the limitations were not consistent with the lack of treatment during the relevant period - and the months preceding the relevant period (Tr. 18). The plaintiff does not identify any record evidence from the relevant period that is consistent with Dr. O'Kennon's opinion; instead, the plaintiff relies on testimony by the plaintiff that COVID-19 prevented him from seeking medical treatment (doc. 20 at 7-8). However, the plaintiff's referenced testimony indicates that he had been receiving medical treatment telephonically, but that a colonoscopy and magnetic resonance imaging (“MRI”) had been postponed due to the pandemic (Tr. 59-60). Thus, the plaintiff's assertion is misplaced.
Regulation section entitled “How we consider and articulate medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017.”
Additionally, to the extent the plaintiff's argument in his reply brief regarding the ALJ's analysis of the VA decision includes an assertion that the ALJ omitted discussion of portions of Dr. O'Kennon's opinion, the court finds this argument equally unavailing. Instead, the portions of Dr. O'Kennon's examination referenced by the plaintiff do not appear to be opinions under the amended regulations - thus, the ALJ did not err in only addressing the portion of Dr. O'Kennon's examination that was an opinion under the regulations. The new regulations provide guidance on what constitutes a “medical opinion”:
(2) Medical opinion. A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: . . .
(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural
functions, such as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and (iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.Id. § 404.1513(a)(2). The matters identified by the plaintiff as “opinions” that he claims were ignored by the ALJ's decision do not fall within the amended regulations' definition of opinion (see doc. 24 at 7-9). For example, the majority of the items identified by the plaintiff are under the subheading of “symptoms” and do not describe the plaintiff's ability to engage in the demands of work activities (see doc. 24 at 8 (citing Tr. 335)). Moreover, the other quoted phrase from Dr. O'Kennon's examination is under the heading of “behavioral observations, ” and although Dr. O'Kennon notes that the plaintiff had a hard time with word finding, Dr. O'Kennon does not opine specific limitations relating to those behavioral observations (Tr. 335). An evaluation of an individual that does not include a work-related limitation or that lacks specificity regarding the limitations is not a medical opinion. See Tory R. v. Saul, C/A No. 1:20-cv-02664-SVH, 2021 WL 1115911, at *16 (D.S.C. Mar. 24, 2021). As such, the court finds unpersuasive the plaintiff's assertion that the ALJ erred by only specifically addressing the “opinion” in Dr. O'Kennon's examination of the plaintiff.
As such, as outlined above, the ALJ appropriately explained his findings regarding the persuasiveness of Dr. O'Kennon's opinion, as required by the regulations. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). Accordingly, the undersigned finds that the ALJ's evaluation of Dr. O'Kennon's opinion is based upon substantial evidence and without legal error.
VA Disability Rating
The plaintiff further argues that the ALJ erred in his consideration of the C&P examination by Dr. O'Kennon on August 20, 2018, arguing that it is a VA disability rating (doc. 20 at 17-24). The plaintiff's assertion is two-fold: both that Bird v. Comm'r, 699 F.3d 337 (4th Cir. 2012), should apply to the instant matter (and thus Bird would have required the ALJ to provide an analysis of the VA decision) and that even if Bird did not apply, the ALJ's decision does not reflect consideration of the evidence underlying the C&P examination (id.). As an initial matter, of note, the VA record in question is a C&P exam and does not appear to be a VA ratings decision, which is what was analyzed in Bird (see Tr. 333-35). As such, it appears that the holding in Bird may not apply to the ALJ's analysis of Dr. O'Kennon's C&P exam notes. Nevertheless, the undersigned will address the applicability of Bird to Dr. O'Kennon's examination notes.
As an initial matter, the undersigned finds that although Bird is still good law in this circuit, the portion discussing the treatment of VA disability ratings is not applicable to the plaintiff's application. Here, as noted above, the plaintiff's application for DIB was in November 2019 (Tr. 167-70), after the regulations were amended. In Bird, the Fourth Circuit addressed the weight that should be given to VA disability determinations and found as follows:
Thus, we hold that, in making a disability determination, the SSA must give substantial weight to a VA disability rating. However, because the SSA employs its own standards for evaluating a claimant's alleged disability, and because the effective date of coverage for a claimant's disability under the two programs likely will vary, an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.Bird, 699 F.3d at 343. However, this part of the holding in Bird relies upon regulations that have now been amended by the SSA, as well as a Social Security Ruling (“SSR”) that has been rescinded effective March 27, 2017. See Bird, 699 F.3d at 342-43 (citing 20 C.F.R. §§ 404.1504; 404.1512(b)(5); SSR 06-03p). For applications filed on or after March 27, 2017, the applicable regulation has been amended to read that the SSA
will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in your claim . . . .20 C.F.R. § 404.1504. See Id. § 404.1512 (subsection referencing decisions cited in Id. § 404.1504 deleted as of March 27, 2017); SSR 06-03p (rescinded effective March 27, 2017). Moreover, the “VA and SSA disability programs serve different purposes for populations that overlap[, ]” and “[w]hile individuals with a VA rating of 100% [individual unemployability] have a slightly higher allowance rate under [SSA's] programs than members of the general population, nearly one-third are denied benefits based on [SSA's] rules . . . .” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, at 5, 849 (Jan. 18, 2017). Thus, VA “ratings alone are neither inherently valuable or persuasive in our disability evaluation because they give us little substantive information to consider.” Id.
The plaintiff argues that Bird is still applicable to the instant matter, despite the amended regulations, based upon cases from the United States District Courts for the Eastern and Western Districts of North Carolina (doc. 20 at 19-20 (collecting cases from North Carolina and South Carolina regarding post-regulation change treatment of Bird)). As recognized by the plaintiff, the Fourth Circuit has not addressed the applicability of Bird to applications filed after the regulations were amended; however, this court has held on previous occasions that Bird is inapplicable to applications filed after the regulations were amended. See Johnson v. Saul, C/A No. 6:19-cv-01155-MGL-KFM, 2020 WL 6265092, at *4 (D.S.C. June 3, 2020), R&R adopted by 2020 WL 5810523 (D.S.C. Sept. 30, 2020); Hagan v. Saul, C/A No. 9:19-cv-02591-BHH-MHC, 2021 WL 1430914, at *8 (D.S.C. Jan. 15, 2021), R&R adopted by 2021 WL 870383 (D.S.C. Mar. 9, 2021); Yonnes S. v. Saul, C/A No. 1:20-cv-00819, 2021 WL 2767298, at *9 (E.D. Va. Mar. 31, 2021). But see Van Cleave v. Saul, C/A No. 1:20-cv-00144-DSC, 2021 WL 2078004, at *2 (W.D. N.C. May 24, 2021); Wright v. Saul, C/A No. 3:20-cv-00201-DSC, 2021 WL 1124784, at *3 (W.D. N.C. Mar. 24, 2021); Rose v. Saul, C/A No. 7:19-cv-00091, 2020 WL 4740479, at *3-4 (E.D. N.C. Aug. 14, 2020). In line with the other cases of this court, even presuming the C&P examination is considered a VA rating decision for purposes of Bird, the undersigned finds that the holding in Bird regarding the treatment of VA disability ratings is not applicable to the plaintiff's case, because his application was filed after March 27, 2017. Accordingly, the ALJ was not required to evaluate or adopt the VA disability rating or its conclusions.
Notwithstanding the foregoing, it appears that the plaintiff may argue that the ALJ failed to consider the evidence underlying the C&P examination (doc. 20 at 18-19). The plaintiff references several treatment notes from the record (id. at 22-23). First, of note, the records underlying to the C&P examination performed by Dr. O'Kennon would have to date prior to the examination in August 2018; thus, the plaintiff's reference to records dated September 4, 2019, and forward, is in error. Additionally, to the extent the plaintiff references treatment records predating Dr. O'Kennon's examination, the ALJ's decision specifically addresses these records. For example, specifically with respect to Dr. O'Kennon's C&P examination, the ALJ noted that the plaintiff's lack of consistent treatment (even during the time preceding the period relevant to the ALJ's decision), as outlined above, was not consistent with Dr. O'Kennon's finding of “total occupational and social impairment” (Tr. 18). Moreover, the ALJ's decision described the plaintiff's medical treatment, noting that even considering the entire record, the plaintiff had limited and sporadic treatment, which did not support limitations greater than those provided for by the ALJ (Tr. 17). The Fourth Circuit has acknowledged that “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014). Accordingly, in light of the foregoing, the undersigned finds no error in the ALJ's consideration of the C&P examination by Dr. O'Kennon, because the holding in Bird is inapplicable in this matter as well as because the ALJ's decision appropriately discussed the evidence underlying the C&P examination in finding that the plaintiff was not disabled during the relevant period.
Lawful Authority of ALJ
The plaintiff's reply brief introduces a new conclusory argument that the Commissioner's decision is “constitutionally defective” (doc. 24 at 15-17). As an initial matter, the plaintiff's reliance on Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183, 2197 (2020), is misplaced. Indeed, a memo completed near in time to the removal of Commissioner Saul by President Biden noted that the validity of the remainder of the Social Security Act is not affected by the conclusion that the removal restriction is constitutionally unenforceable. See Constitutionality of the Commissioner of Social Security's Tenure Protection, Memorandum Opinion for the Deputy Counsel to the President, https://www.justice.gov/sites/default/files/opinions/attachments/ 2021/07/09/2021-07-08-ssa-commr.pdf (last visited October 27, 2021). As such, the plaintiff has not provided a basis for finding that the ALJ's decision was constitutionally defective, and the plaintiff's argument regarding this particular issue is without merit.
Job No. Relied Upon by the Vocational Expert
For the first time, in his reply brief, the plaintiff asserts that the ALJ erred in finding that there are jobs that exist in significant No. in the national economy that he could perform (doc. 24 at 12-14). The plaintiff further asserts that even though this issue was not raised in the initial brief, it is not waived based upon the recent United States Supreme Court case of Carr v. Saul, 141 S.Ct. 1352, 1358 (2021) (id. at 14-15). The plaintiff's reliance on Carr is misplaced. In Carr, the Supreme Court found that claimants did not have to raise Appointments Clause challenges during administrative proceedings in order to preserve the issue in federal court. Carr, 141 S.Ct. at 1362. Here, however, the issue that the plaintiff failed to raise was not during the administrative proceedings; instead, the plaintiff failed to raise this matter in his initial brief before the district court. As such, under the Fourth Circuit case in Shinaberry v. Saul, it is deemed waived. Shinaberry, 952 at 124 n.5 (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief).
Although the matter is deemed waived based upon Shinaberry, the undersigned will, in an abundance of caution, address the plaintiff's job No. claim. As noted, the plaintiff argues that the ALJ erred in finding that there are jobs that exist in significant No. in the national economy that the plaintiff can perform (doc. 24 at 12-15). In response to the hypothetical question containing the RFC found by the ALJ, the vocational expert identified three jobs: Assembler (Dictionary of Occupational Titles (“DOT”) # 739.685-026), Hand Packer (DOT # 789.687-066), and Production Inspector (DOT # 529.687-114) (Tr. 19, 68-69). The vocational expert testified that there were more than 360, 000 assembler jobs nationally, 400, 000 hand packer jobs nationally, and 200, 000 production inspector jobs nationally (Tr. 68-69). Based upon this testimony, the ALJ found at the fifth step of the sequential evaluation process that there are jobs that exist in significant No. in the national economy that the plaintiff can perform (Tr. 19).
The plaintiff first argues that the ALJ erred in relying on the vocational expert's testimony because the vocational expert did not identify the source of the job data and because the ALJ did not ask the vocational expert to explain his methodology for determining the No. of jobs in the national economy (doc. 24 at 12). However, as held by the United States Supreme Court in Biestek v. Berryhill, “a vocational expert's testimony may count as substantial evidence even when unaccompanied by supporting data.” Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019). The plaintiff has not presented any caselaw nor regulation requiring the vocational expert to proactively identify the sources of his job figures or requiring the ALJ to inquire into those sources. Moreover, counsel for the plaintiff did not challenge the vocational expert's credentials or job data at the administrative hearing - specifically offering no objections for the vocational expert's qualifications to testify in the case, such that the ALJ would have reason to question them. Indeed, the vocational expert's resume indicates that he has been in the private practice of psychology and vocational assessment since 1996 (Tr. 239-43). As such, based upon the vocational expert's twenty years of professional experience, the ALJ could reasonably rely upon the vocational expert's testimony to carry the burden at step five.
The plaintiff also contends that the No. of jobs the vocational expert testified existed that the plaintiff could perform was inflated, and, therefore, the ALJ erred in relying on the information (doc. 24 at 12-15). As support for his assertion, the plaintiff relies on job No. listed in an online database called SkillTRAN, which notes only 17 assembler jobs in the national economy, only 30 hand packer jobs, and only 71 production inspector jobs (doc. 24 at 21-26). However, the plaintiff's assertion that the vocational expert's testimony lacked credibility presumes that the vocational expert relied only on the SkillTRAN database for his job numbers; however, the regulations specifically provide that the vocational expert is entitled to rely on any one of a No. of sources in testifying regarding the No. of jobs available in the national economy. See 20 C.F.R. § 404.1566(d). Additionally, while there is no rule setting a No. that constitutes a “significant” No. of jobs, the Fourth Circuit has found as few as 110 jobs to constitute a significant number. See Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979) (noting that as few as 110 jobs constitutes a significant number); see also Hodges v. Apfel, 2000 WL 121251 (4th Cir. 2000) (unpublished table decision) (finding 153 jobs to be a significant number); Best v. Berryhill, C/A No. 5:16-cv-00030-FL, 2017 WL 685601, at *4 (E.D. N.C. Feb. 3, 2017) (“The term significant No. is not statutorily defined and courts have generally found that what constitutes a significant No. is fairly minimal.” (internal citations omitted)), R&R adopted by 2017 WL 684184 (E.D. N.C. Feb. 21, 2017). Here, even using the plaintiff's job numbers, the No. of available jobs exceeds the 110 found “significant” by the Fourth Circuit. Thus, the undersigned finds no error in the ALJ's reliance upon the vocational expert's testimony in finding that there were a significant No. of jobs in the national economy that the plaintiff could perform.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).