Opinion
No. 5:19-CV-00121-D
07-26-2019
Julie Ann Harrell, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Julie Harrell instituted this action in November 2017 to challenge the denial of her application for social security income. Harrell claims that Administrative Law Judge ("ALJ") Sharon L. Madsen erred in evaluating the medical opinion evidence. Both Harrell and Defendant Andrew Saul, Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 17, 22.
Harrell filed this action in the United States District Court for the Eastern District of California. Because it appeared that Harrell moved to Willow Springs, North Carolina, the action was transferred to this court on March 25, 2019. See D.E. 1.
After reviewing the parties' arguments, the court has determined that ALJ Madsen reached the appropriate determination. The undersigned cannot find any fault in her assessment of the medical opinion evidence from the non-examining state agency physicians. The undersigned magistrate judge therefore recommends that the court deny Harrell's motion, grant the Commissioner's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b). D.E. 34.
I. Background
In August 2013, Harrell applied for disability benefits and, in December 2015, applied for supplemental security income. In both applications, Harrell alleged a disability that began in March 2009. After her claim was denied at the initial level and upon reconsideration, Harrell appeared at a hearing before ALJ Madsen to determine whether she was entitled to benefits. ALJ Madsen determined that Harrell had no right to benefits because she was not disabled. Tr. at 17-30.
ALJ Madsen found that Harrell had several severe impairments: cervical degenerative disc disease, mild degenerative joint disease of the right hip, Factor 5 Leiden deficiency on anticoagulant, major depressive disorder, post-traumatic stress disorder ("PTSD"), and amphetamine dependence. Tr. at 20. ALJ Madsen concluded that Harrell's impairments, alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Madsen determined that Harrell had the residual functional capacity ("RFC") to perform a reduced range of light work. Tr. at 21. Harrell is limited to occasional overhead reaching. Id. She cannot climb ladders, ropes, or scaffolds. Id. Harrell cannot work around unprotected heights and she must avoid exposure to sharp object such as knives. Id. And Harrell can perform simple, routine tasks. Id.
ALJ Madsen concluded that Harrell cannot perform her past relevant work as a retail store manager or inspector and hand packager. Tr. at 28. But considering her age, education, work experience, and RFC, ALJ Madsen found that jobs existed in significant numbers in the national economy that Harrell could perform. Tr. at 29. These include marker, garment sorter, and garment bagger. Id. Thus, ALJ Madsen found that Harrell was not disabled. Tr. at 29-30.
After unsuccessfully seeking review by the Appeals Council, Harrell began this action in November 2017. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Harrell v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Providers at Mineral King Surgical Associates Clinic examined Harrell in February and March 2012. Tr. at 561-62, 814-15. She had normal motor strength and intact sensation. Id. In August 2012, testing revealed mild degenerative changes and moderate neural foraminal stenosis in Harrell's cervical spine. Tr. at 23.
Later that year, Harrell's neck displayed tenderness from C3-C7. Id. Her back appeared normal aside from tenderness in the lumbosacral region. Id. Harrell displayed positive bilateral straight leg raises upon testing and she had some decreased flexation. Id.
Four months later, x-rays of Harrell's right hip revealed minimal dysplasia and mild osteoarthritis. Id. Providers prescribed medication and a TENS unit, and administered injections. Id.
Harrell has factor 5 Leiden deficiency with a history of pulmonary embolism, which was stable with warfarin. Tr. at 24. Providers recommended that she wear compression socks. Id. Although Harrell was not fully compliant with treatment, she showed no evidence of deep vein thrombosis or pulmonary embolism. Id.
Harrell received mental health treatment for major depressive disorder, PTSD, and amphetamine dependence. Id. Providers prescribed medications and Harrell attended therapy sessions. Id. Between 2011 and 2014, Harrell displayed generally normal findings upon mental status examinations. Id.
In March 2014, Harrell discontinued her psychotropic medication and mental health treatment. Three months later, she experienced a drug overdose, assessed as a suicide attempt, which put her in a coma. Tr. at 24-25. Harrell resumed mental health treatment the next month, which continued until November 2014. Tr. at 25. During this time, providers noted generally normal findings upon mental status examination. Id. And Harrell stated that she was doing a lot better and would be traveling. Id.
From November 2014 through December 2015, Harrell received no mental health treatment and she did not have a primary care provider. Id. She received care at WakeMed between May and November 2015. During this period, providers noted that Harrell had a normal gait, normal range of motion, full strength, and intact sensation and reflexes. Tr. at 1582, 1585, 1588, 1591.
State agency consultant Dr. L. Kiger assessed Harrell's functioning in October 2013. Tr. at 27. He found that Harrell could occasionally lift and carry ten pounds, and frequently lift and carry less than ten pounds. Id. Dr. Kiger determined that she could walk and stand for two hours and sit for six hours in an eight-hour workday. Id. He also assessed postural restrictions. Id. Six months later, Dr. I. Ocrant affirmed these conclusions in his review of Harrell's records. Id.
State agency psychiatrist Dr. D. Funkenstein opined that there was insufficient evidence to support a mental disorder. Id. State agency psychologist Dr. E. Murillo offered an opinion on Harrell's mental functioning in March 2014. Id. He determined that there was little evidence to show that Harrell's mental impairments were severe. Id.
D. Medical Opinion Evidence
Harrell contends that ALJ Madsen erred in giving only some weight to the assessments of Drs. Kiger and Ocrant. The Commissioner asserts that ALJ Madsen's reasons for according less weight to these providers' opinions are supported by the record. The undersigned cannot conclude that ALJ Madsen's assessment of the medical opinion evidence is flawed.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
1. State Agency Physicians
Harrell contends that ALJ Madsen erred in failing to adopt the conclusions of state agency physicians Drs. Kiger and Ocrant, who both opined that she was limited to a reduced range of sedentary work. The Commissioner maintains, and the undersigned agrees, that ALJ Madsen sufficiently explained why she granted only some weight to these findings.
As noted above, Dr. Kiger's October 2013 review found that Harrell could occasionally lift and carry ten pounds, and frequently lift and carry less than ten pounds. Tr. at 27. Dr. Kiger determined that she could walk and stand for two hours and sit for six hours in an eight-hour workday. Id. He also assessed some postural restrictions. Id. Six months later, Dr. Ocrant's review endorsed the same conclusions about Harrell's functioning. Id.
ALJ Madsen gave some weight to the opinions. Id. She remarked that evidence produced at the hearing supported an RFC at the light, nor sedentary, exertional level. Id.
Harrell objects to ALJ Madsen's statement and faults her failure to identify the records supporting a broader RFC. But the undersigned finds that a review of ALJ Madsen's decision discloses the evidence supporting her RFC finding for a reduced range of light work.
The medical evidence from 2013 and 2014 revealed that Harrell had intact gait, motor function, range of motion, and reflexes. Examinations after the state agency physicians' reviews similarly showed that Harrell had normal gait, range of motion, strength, and sensation. There were no significant abnormalities in Harrell's hips. Testing of Harrell's back and neck disclosed only mild to moderate findings. And providers treated Harrell's conditions conservatively with medications, injections, and non-invasive modalities.
Harrell's activities of daily living included cooking, driving, grocery shopping, light housework, caring for her children, and helping them with homework. Tr. at 26. Harrell also reported taking a vacation and traveling for three months. Tr. at 25-26. And ALJ Madsen also noted that Harrell's significant treatment gaps and medication non-compliance undermined the severity of her alleged symptoms. Id.
In sum, the evidence generated since the state agency physicians' reviews suggests that Harrell is neither disabled, as she claims, nor limited to sedentary work, as Drs. Kiger and Ocrant concluded. Her generally benign clinical findings coupled with her treatment history and daily activities are inconsistent with a conclusion that she is limited to sedentary work.
ALJ Madsen's determination sets forth the evidence supporting her finding that Harrell can perform a reduced range of sedentary work. Finding no error in ALJ Madsen's RFC analysis, the undersigned recommends that the court reject Harrell's argument on this issue as it lacks merit.
2. Prior Disability Determination
Harrell also challenges ALJ Madsen's RFC for a reduced range of light work, arguing it is less-restrictive than the previous disability finding that she had an RFC for sedentary work. The Commissioner contends, and the undersigned agrees, that the ALJ Madsen was not bound by the previous findings in Harrell's earlier disability determination.
The SSA issued Acquiescence Ruling 00-1(4), 65 FR 1936-01 (Jan. 12, 2000), which addressed a Fourth Circuit case, Albright v. Commissioner of Social Security Administration, and the consideration of prior agency decisions:
[W]here a final decision of SSA after a hearing on a prior disability claim contains a finding required at a step in the sequential evaluation process for determining disability, SSA must consider such finding as evidence and give it appropriate weight in light of all relevant facts and circumstances when adjudicating a subsequent disability claim involving an unadjudicated period.AR 00-1(4); Albright, 174 F.3d 473 (4th Cir. 1999). In determining whether to consider a prior finding as evidence, AR 00-1(4) addresses how adjudicators of later claims should consider findings made in earlier claims and the appropriate weight to be given the earlier findings given the facts and relevant circumstances. It directs an ALJ to look to:
(1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.Id.
An ALJ need not walk through each factor to comply with AR 00-1(4). Reviewing and evaluating all the evidence presented at the correct standard complies with the acquiescence ruling. See Melvin v. Astrue, 602 F. Supp. 2d 694, 702 (E.D.N.C. 2009) ("Although the ALJ did not specifically refer to AR 00-1(4) . . . or explain the precise weight he gave to the [prior ALJ's findings], the ALJ did consider the prior ALJ's findings as part of reviewing the record . . . In doing so, the ALJ complied with AR 00-1(4). The ALJ also complied with . . . Albright."). Courts within the Fourth Circuit have generally found remand appropriate under AR 00-1(4) where an ALJ neglects to discuss a prior decision at the administrative hearing level, and the prior decision contains findings more favorable to the claimant than the ALJ's later decision. See Barbee v. Colvin, No. 5:14-CV-424, 2015 WL 5039124, at *8-9 (E.D.N.C. Aug. 7, 2015) (recommending remand where ALJ's RFC finding did not include sit/stand option in past decision and ALJ failed to discuss past decision), adopted by 2015 WL 5054402 (E.D.N.C. Aug. 26, 2015).
ALJ Madsen addressed the previous disability determination and concluded that the evidence supported a more-expansive RFC. Tr. at 17. As noted above, substantial evidence supports ALJ Madsen's RFC determination. Harrell's treatment records reflect generally normal or unremarkable findings, such as normal gait, full strength, and normal range of motion. And her daily activities and the conservative nature of her treatment undermine a determination that her RFC is limited to sedentary work.
Having not only considered and weighed the prior disability finding, but identifying new material showing a change is Harrell's condition as the basis to depart from the earlier findings, ALJ Madsen complied with both AR 00-1(4) and Albright. See Melvin, 602 F. Supp. at 702. Finding no error in ALJ Madsen's consideration of the prior disability finding, the undersigned recommends that the court reject Harrell's argument to the contrary.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court deny Harrell's Motion for Judgment on the Pleadings (D.E. 17), grant Saul's Motion for Judgment on the Pleadings (D.E. 22), and affirm the Commissioner's decision.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: July 26, 2019
/s/_________
Robert R Numbers, II
United States Magistrate Judge