Opinion
C/A No. 2:18-cv-02379-MGL-MGB
01-06-2020
ALLISON JOHNSON MACKEY, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Allison Johnson Mackey ("Plaintiff"), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 35 years old on her alleged disability onset date, March 25, 2014. (R. at 12, 29.) Plaintiff claims disability due to, inter alia, degenerative disc disease of the cervical spine status-post cervical fusion, cervical spondylosis, fibromyalgia, inflammatory arthritis, degenerative joint disease of the hips, degenerative joint disease of the right knee, depression, and anxiety. (R. at 15.) Plaintiff has at least a high school education and is able to communicate in English. (R. at 29.) Plaintiff has past relevant work as an elementary school teacher. (R. at 28.)
Plaintiff filed an application for DIB on April 22, 2015. (R. at 12.) Her application was denied initially and on reconsideration. (R. at 12.) After a hearing before an Administrative Law Judge ("ALJ") on August 8, 2017, the ALJ issued a decision on September 22, 2017, in which the ALJ found that Plaintiff was not disabled. (R. at 12-30.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
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 meets the insured status requirements of the Social Security Act through December 31, 2019.
(2) The claimant has not engaged in substantial gainful activity since March 25, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease of the cervical spine status-post cervical fusion, cervical spondylosis, fibromyalgia, inflammatory arthritis, degenerative joint disease of the hips, degenerative joint disease of the right knee, depression, and anxiety (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to occasional climbing of ramps and stairs, but never climbing of ladders, ropes, and scaffolds. The claimant is limited to frequent balancing, occasional stooping, kneeling, crouching, and crawling, and must avoid concentrated exposure to hazards. The claimant is limited to frequent handling and fingering with the right hand. The claimant should be able to move from sitting to standing at will without increasing time off task. The claimant is limited to performing jobs while using a handheld assistive device to ambulate from one place to another. The claimant is able to perform simple and routine tasks. The claimant is limited to frequent interaction with supervisors, coworkers, and the public. The claimant is able to adapt to occasional changes in the workplace.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).(R. at 12-30.)
(7) The claimant was born on April 19, 1978 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 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 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from March 25, 2014, through the date of this decision (20 CFR 404.1520(g).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); She must make a prima facie showing of disability by showing that he is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
Once an individual has established an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Monroe, 826 F.3d at 180. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff argues that the ALJ's decision is not supported by substantial evidence for the following reasons: (1) the ALJ erred at Step Five by relying on testimony from the Vocational Expert ("VE") that was inconsistent with the Residual Functional Capacity ("RFC") limitations; (2) the ALJ failed to properly evaluate the opinion evidence of Plaintiff's treating rheumatologist and examining psychologist; (3) the ALJ failed to reconcile the weight she afforded the medical opinions when assessing Plaintiff's RFC; and (4) the ALJ failed to properly evaluate Plaintiff's subjective testimony (Dkt. No. 12.)
The undersigned considers these arguments below.
A. Conflict in Vocational Expert Testimony
As part of the ALJ's duty at Step Five of the sequential process, the ALJ must resolve any apparent conflicts between a vocational expert's testimony and the DOT. See Pearson, 810 F.3d at 208-11; SSR 00-04p, 2000 WL 1898704. Here, Plaintiff asserts that the ALJ failed to resolve the apparent conflict between the VE's testimony regarding the jobs Plaintiff can perform and the information in the Dictionary of Occupational Titles ("DOT"). (Dkt. Nos. 12 at 33-35; 16 at 1-4.) At the August 8, 2017 hearing, the VE testified that an individual with Plaintiff's age, education, work experience, and RFC limitations, would be able to perform the following jobs: order caller (DOT 209.667-014), work ticket distributor (DOT 221.667-010), and inspector and hand packager (DOT 559.687-074). (R. at 60.) The VE testified that her testimony "was consistent with the information" found in the DOT. (R. at 62.) The VE further testified that "the portions relative to the use of one extremity versus the other, sit/stand option, the use of an assistive device and absenteeism is based upon [her] professional experience, education and training[,] as the DOT does not directly address those issues." (R. at 62.)
Plaintiff argues that an apparent conflict exists because the above occupations identified by the VE have a General Educational Development ("GED") reasoning level of two, which Plaintiff argues exceeds her limitation that she can "perform simple and routine tasks" with only "occasional changes in the workplace." (Dkt. No. 12 at 35; R. at 18.) In support, Plaintiff cites Thomas v. Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019), a published opinion in which the Fourth Circuit held that an apparent conflict exists "between a limitation to 'short, simple instructions' . . . and a need to carry out "detailed but uninvolved . . . instructions' (as found in jobs requiring Level 2 Reasoning).'" The Thomas court clarified the ALJ's role in resolving such an "apparent conflict," stating
The undersigned notes that Thomas was issued while this matter was pending before this Court; therefore, the ALJ did not have the benefit of Thomas.
[a]n ALJ cannot rely unquestioningly on a VE's testimony. Rather, an ALJ must ensure that any "apparent" conflicts between the Dictionary and the VE's testimony are reasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ
must ask the VE whether his or her testimony conflicts with the DOT. If the answer is "yes," the ALJ "must elicit a reasonable explanation for the conflict before relying on" the testimony. Id. But even if the VE answers "no," the ALJ has an affirmative "duty to make an independent identification of apparent conflicts." Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in which a VE's testimony "seems to, but does not necessarily," conflict with the "express language" of the DOT—even if the conflict is not "obvious." Id. at 209.Id. at 313.
Here, the question is whether a limitation to "simple and routine tasks" with only "occasional changes in the workplace" presents an apparent conflict similar to the one found in Thomas. The Fourth Circuit Court of Appeals has recently held that there is not an apparent conflict between a limitation to "simple, routine repetitive tasks of unskilled work" and a reasoning level of two. See Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019) ("In finding no apparent conflict between 'simple, routine, repetitive' and Level 2 reasoning, we join every other circuit to consider the issue."). In Lawrence v. Saul, the Fourth Circuit explained that "the key difference" is that, in Thomas, the RFC included a limitation to "short" instructions, and "'[s]hort' is inconsistent with 'detailed' because detail and length are highly correlated." Id. at 143. The court found that the limitation to "simple, routine repetitive tasks" was not inconsistent with "Level 2's notions of 'detailed but uninvolved . . . instructions' and tasks with 'a few [ ] variables.'" Id. Likewise, the court stated that "there is no conflict between 'simple' and 'uninvolved' instructions, as both connote instructions that 'are not complicated or intricate.'" Id. (quoting Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010)); see also King v. Saul, No. 19-1556, 2019 WL 6713598, at *1 (4th Cir. Dec. 10, 2019) (finding "no apparent conflict between a limitation to performing only simple routine repetitive tasks and a position requiring the ability to understand and carry out detailed, but uninvolved, instructions").
Notably, the Lawrence opinion was issued only after the parties completed their briefing of this issue—the parties did not have the benefit of Lawrence when briefing their positions. In light of Lawrence, Plaintiff's argument of an unresolved conflict lacks merit.
B. Opinion Evidence
Plaintiff next argues that the ALJ erred in her assessment of certain opinion evidence. An ALJ is required to assign weight to every medical opinion in a claimant's record. 20 C.F.R. §§ 404.1527(c) ("Regardless of its source, we will evaluate every medical opinion we receive."); 404.1527(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). In general, an ALJ must accord more weight to the medical opinion of an examining source than to that of a nonexamining source. Testamark v. Berryhill, 736 Fed. Appx. 395, 387 (4th Cir. 2018) (citing 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1) and Brown v. Comm'r of Soc. Sec. Admin., 873 F.3d 251, 268 (4th Cir. 2017)). Treating sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of the claimant's medical impairments. Id. (citing Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018)). "[T]he ALJ is required to give controlling weight to opinions proffered by a claimant's treating physician so long as the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the claimant's case record." Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (alterations and internal quotations omitted). If an ALJ does not give controlling weight to the opinion of a treating source, the ALJ must consider a non-exclusive list of factors to determine the weight to be given all the medical opinions of record, including (1) examining relationship; (2) treatment relationship; (3) supportability of the source's opinion; (4) consistency of the opinion with the record; and (5) specialization of the source. Testamark, 736 Fed. Appx. at 398. The Commissioner must provide specific reasons, supported by the record, for the weight afforded a treating physician's medical opinion. SSR 96-2p.
The Social Security Administration has amended the "Treating Physician Rule," effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2). Because Plaintiff's claim was filed before the effective date of the change, the decision is reviewed under the regulation in effect at that time, 20 C.F.R. § 404.1527.
SSR96-2P was rescinded effective March 27, 2017 as part of the amendment of the "Treating Physician Rule." SSA-2012-0035, 2017 WL 3928298. However, it was in effect at the time the ALJ adjudicated Plaintiff's claim.
Here, Plaintiff takes issue with the ALJ's assessment of the opinions offered by her treating rheumatologist, Georgia Roane, M.D., and by her examining psychologist, Randolph Waid, Ph.D. (Dkt. No. 12 at 35-41.) The undersigned considers the ALJ's assessment of these individual's opinions in turn.
1. Dr. Roane
Dr. Roane treated Plaintiff for her arthritic joint pain throughout the relevant time period. The ALJ discussed Plaintiff's treatment with Dr. Roane at length in her decision. (R. at 21-22, 25, 27-28.) In her discussion of Plaintiff's treatment for her "hip and knee pain," the ALJ noted that Dr. Rhone's treatment notes "throughout 2014 and into early 2015 showed that she reported neck, hand, and foot pain with joint stiffness and swelling." (R. at 21.) The ALJ detailed Plaintiff's treatment with Dr. Roane during that time. (R. at 21-22.)
The ALJ discussed Plaintiff's treatment for "rheumatoid arthritis and inflammatory arthritis" and noted Plaintiff's difficulties with the treatments for these ailments. (R. at 22.) More specifically, in 2015, Plaintiff "reported Plaquenil no longer worked," and she "had to stop Methotrexate due to neutropenia." (R. at 22.) The ALJ noted that "[b]y November of 2016, the claimant report [sic] the pain in her hands, hips, and feet decreased and she admitted that she went to an outdoor football game and walked a fair distance up and down stairs." (R. at 22.) The ALJ stated, inter alia, that on February 1, 2017, "Dr. Roane noted the claimant had no tenderness to the hands, wrists, shoulders, ankles, knees, or hips with full extremity range of motion," and on April 12, 2017, "Dr. Roane noted that the claimant's right knee appeared tender with minimal swelling and her hands showed no synovitis with minimal tenderness." (R. at 22.)
In addition to her consideration of Dr. Roane's records, the ALJ discussed Dr. Roane's opinions about Plaintiff's limitations. In treatment records dated November 1, 2016; February 1, 2017; and April 18, 2017; "Dr. Roane included notations . . . that the claimant was unable to work due to severe arthritis." (R. 25, 681, 678, 844.) In a medical source statement dated July 26, 2017, Dr. Roane opined that Plaintiff "could only lift less than ten pounds, could stand or walk less than two hours in an eight-hour workday, could occasionally reach, never handle or finger, and would be off task for fifty percent of the workday due to pain and fatigue." (R. at 849-55.) Dr. Roane opined in this statement that Plaintiff would be unable to work due to her limitations. (R. at 25, 855.) In her decision, the ALJ afforded these opinions from Dr. Roane "little weight." (R. at 25.) After summarizing Dr. Roane's opinions, the ALJ stated,
Although Dr. Roane is a treating and examining source, such severe restrictions appear contrary to her own physical examinations of the claimant, particularly the most recent one date[d] April 12, 2017, just three months before her medical statement, where Dr. Roane assessed that the claimant's right knee appeared tender with minimal swelling and her hands showed no synovitis with minimal tenderness (9F/2; 10F/4; 17F/4, 7; 18F/45, 73; 19F/3). Moreover, Roane's assessment that the claimant is unable to work goes to an issue reserved for the Commissioner and cannot be accorded any special weight (20 CFR 404.1527(e)). Due to its internal inconsistency with her own treatment notes, the undersigned gives little weight to the opinions of Dr. Roane.(R. at 25.)
Here, Plaintiff argues that the ALJ "erred in selectively relying on portions of Dr. Roane's treatment notes to discredit her opinion." (Dkt. No. 12 at 38.) Plaintiff first asserts that the ALJ did not consider the entirety of the April 12, 2017 treatment note in her analysis of Dr. Roane's opinion evidence. Specifically, in the treatment records from Plaintiff's April 12, 2017 visit with Dr. Roane, Dr. Roane noted that Plaintiff "has had some reaction issues when receiving Rituxan and also had an episode of numbness following an epidural block. . . . Her arthritis is flaring, and she's ready to get her infusion. She remains stiff and painful." (R. at 843.) Dr. Roane opined that Plaintiff's "arthritis remains active and she remains unable to work not only due to her arthritis, but multiple medical problems." (R. at 844.) Plaintiff received Rituxan during the April 12, 2017 visit, and a follow up visit in two weeks was scheduled. (R. at 844-846.) Plaintiff argues that the record indicates Plaintiff's swelling "was always characterized as subtle" and that her main arthritic symptoms were "stiffness and tenderness." (Dkt. No. 12 at 38.) Plaintiff also asserts the ALJ ignored certain evidence from Plaintiff's February 1, 2017 visit with Dr. Roane. (Dkt. No. 12 at 39.) Specifically, during that visit, Dr. Roane noted that Plaintiff was anemic with a low B12 level, had "concerning" episodes of low blood sugar, and had a possible allergy to steroids. (R. at 677.) Dr. Roane also noted here that Plaintiff's arthritis is "active" and that Rituxan "is one of the few treatment options available to" Plaintiff. (R. at 678.)
The Commissioner responds that many of the examinations by Dr. Roane "showed that Plaintiff generally had variations of mild swelling and/or tenderness in her joints . . . because of rheumatoid arthritis" and that the ALJ appropriately relied on this evidence to find inconsistencies with Dr. Roane's opinions. (Dkt. No. 13 at 17-18.) The Commissioner further points to evidence indicating Plaintiff's knee pain was managed "with periodic corticosteroid injections." (Id. at 18.)
Upon careful review of the record, the undersigned cannot find that the ALJ's decision to discount the opinions of Plaintiff's treating rheumatologist was supported by substantial evidence. As an initial matter, the ALJ appears to rely mainly on Dr. Roane's April 12, 2017 treatment note to discount Dr. Roane's opinion that Plaintiff is unable to work; could stand or walk less than two hours in an eight-hour workday; could occasionally reach, never handle or finger; and would be off task for fifty percent of the workday due to pain and fatigue. (R. at 25.) Specifically, the ALJ highlighted that the April 12, 2017 treatment note states that Plaintiff's right knee is tender with minimal swelling and her hands show no synovitis with minimal tenderness. (R. at 25.) However, as Plaintiff contends, the April 12, 2017 treatment note also states that Plaintiff's arthritis is "flaring" and Plaintiff "remains stiff and painful." (R. at 843.) In addition, by that point, Plaintiff had few treatment options for her arthritis other than Rituxan, to which she "has had some reaction issues." (R. at 843.) The ALJ did not consider these portions of this treatment note, and this treatment note does not clearly undermine Dr. Roane's opinions.
Further, while the ALJ cites a string of other exhibits in her analysis of Dr. Roane's opinions, she offers no explanation for how those exhibits support discounting this opinion evidence. She appears to rely on these exhibits to show that the "severe restrictions [opined by Dr. Roane] appear contrary to her own physical examinations of the claimant." (R. at 25.) However, the exhibits cited by the ALJ extend beyond Dr. Roane's treatment notes and most do not reveal any obvious inconsistencies with Dr. Roane's opinions. (R. at 25.)
For example, the ALJ cites Exhibit 10F/4, which is a progress note from Plaintiff's visit to an orthopedic surgeon on June 10, 2015. (R. at 554.) In this progress note, Dr. Emily Darr writes that Plaintiff "returns regarding her low back pain and a new complaint of right knee pain. . . . She has a new diagnosis of RA. She is on plaquenil. She had Dr. Wolf do a bursectomy which was helpful but she still has pain in the right hip." (R. at 554.)
The ALJ also cites Exhibit 18F/45, which is a progress note from Plaintiff's physician on November 21, 2016, in which Dr. Brad Keith notes that Plaintiff "[w]as at a football game in the cold this weekend. Both knees were itching hot, and now feel swollen since then. Walked a fair distance and walked up stairs. Feels like she fell on something." (R. at 758.) The ALJ mentions various times in her decision that Plaintiff walked up and down stairs at a football game. However, she never mentions the negative effects that excursion had on Plaintiff's knees.
The ALJ cites Exhibit 18F/73, which is a June 2, 2016 progress note, in which Dr. Keith noted, "Seronegative Rheumatoid Arthritis: Treated by Dr. Georgia Roane. Symptoms stable except for the knee." (R. at 786.) Dr. Keith also noted under "chronic issues to address next visit," "right knee pain, likely from S-Ra. Effusion is mild today. Can use Licodaine patch on her knee." (R. at 786.)
The exhibits cited by the ALJ here only include two other treatment notes from Dr. Roane. (R. at 25.) Exhibit 9F/2 is a June 9, 2015 treatment note in which Dr. Roane notes that Plaintiff's
arthritis symptoms are worsening. She's had increasing pain of the hands and feet. In addition, her right knee has become swollen and painful. It is keeping her up at night occasionally and interfering with her walking. She is going to see Dr. Darr tomorrow for probably cortisone injection in the knee. She's taking the Plaquenil, but it does not seem to be controlling her symptoms.(R. at 538.) In this same treatment note, Dr. Roane notes that Plaintiff's "right knee shows very subtle swelling and tenderness. . . . The hands are tender through the wrist and MCP joints." (R. at 538.)
Exhibit 17F/4 is a November 1, 2016 treatment note in which Dr. Roane notes that Plaintiff is "doing okay." (R. at 680.) She states, "The Rituxan has helped overall with arthritis issues. Her right knee is giving her trouble, but her hips, hands and feet are settling down. She is doing fine with Plaquenil." (R. at 680.) Dr. Roane notes that Plaintiff's "right knee is tender with minimal swelling. The hands and wrist showed no synovitis with minimal tenderness." (R. at 680.) Dr. Roane further states, "Rituxan is continued. An injection is provided for the right knee. She remains unable to work due to the severity of her arthritis." (R. at 681.)
Based on the foregoing, it is unclear whether the ALJ considered all of the evidence in discounting Dr. Roane's opinions. The ALJ appeared to primarily rely on a single medical visit to discount Dr. Roane's opinions, and she did not fully consider the treatment record from this visit. More specifically, the ALJ did not remark on the portion of the April 12, 2017 treatment note stating that Plaintiff's arthritis is "flaring," Plaintiff "remains stiff and painful," and that she was having "some reaction issues" with one of the few treatment options left for her arthritis. (R. at 843.) Given the importance the ALJ placed on this treatment note, such cherrypicking by the ALJ is improper. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Adrian v. Berryhill, No. 4:17-cv-99-KS, 2018 WL 4293368, at *5 (E.D.N.C. Sept. 10, 2018) (finding ALJ failed to appropriately analyze treating physician's opinions where "the only specific reason provided by the ALJ to discount" the physician's opinions "related to a single medical visit"; "a general finding that on a particular date at a particular medical appointment Plaintiff's range of motion, strength, nerves, gait, and coordination were 'intact' does not address the key issue in this case - Plaintiff's ability, or lack thereof, to use those abilities throughout an eight-hour workday"). Further, the ALJ cited a string of exhibits here without any explanation as to how these exhibits support discounting Dr. Roane's opinions. As discussed above, the exhibits cited by the ALJ do not reveal any obvious inconsistencies with Dr. Roane's opinions. (R. at 25.) Accordingly, the ALJ's lack of explanation here deprives the Court of its ability to determine whether substantial evidence supports the ALJ's assignment of weight to Dr. Roane's opinions.
Also, while the ALJ stated that she could not afford "any special weight" to Dr. Roane's opinion that Plaintiff is unable to work because this is "an issue reserved to the Commissioner," "the ALJ must nevertheless consider that disability determination as a medical opinion." Wanda H. v. Saul, No. 3:19-CV-001, 2019 WL 6709387, at *5 (E.D. Va. Dec. 9, 2019) ("Although the ALJ correctly noted that the regulations reserve for the Commissioner decisions on a claimant's disability status, the ALJ must nevertheless consider that disability determination as a medical opinion. . . . The fact that Dr. Shamim opined on a matter reserved for the Commissioner does not justify dismissal of Dr. Shamim's entire opinion.") (citing Bjornson v. Astrue, 671 F.3d 640, 647-48 (7th Cir. 2012) (noting that " 'a statement by a medical source that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled' . . . [is] not the same thing as saying that such a statement is improper and therefore to be ignored"); SSR 96-5p, 1996 WL 374183, at *3 (Jul. 2, 1996) ("[O]pinions from any medical source about issues reserved to the Commissioner must never be ignored, and . . . the notice of the determination or decision must explain the consideration given to the treating source's opinion.")).
In sum, the ALJ has failed to sufficiently explain why Dr. Roane's opinion as Plaintiff's treating rheumatologist was not accorded controlling weight, and remand is appropriate.
The undersigned expresses no opinion as to whether further consideration of the record by the ALJ should necessarily lead to a finding that Dr. Roane's opinions are entitled to additional weight or that Plaintiff is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on these points.
2. Dr. Waid
Dr. Waid, a neuropsychologist, examined Plaintiff at her attorney's request three times in 2015 (April 15, May 1, and May 26) and once in 2017 (July 27) "to assess Plaintiff's brain behavior and emotional functioning." (R. at 26, 528-35, 858-65.) The ALJ described Dr. Waid's opinions as follows:
The ALJ states that Dr. Waid examined Plaintiff "twice in 2017." (R. at 26.) However, this appears to be a scrivener's error as the record shows Dr. Waid examined Plaintiff once in 2017, on July 27, 2017. (R. at 858-65.)
At the conclusion of those [] exams, Dr. Waid opined that the claimant's chronic pain and co-occuring depression and anxiety significantly interfered with her brain behavior and functioning such that she would be unable to sustain work activity (8F/7; 22F/8). Likewise, Dr. Waid completed two medical forms dated July 29, 2017 in which he opined that the claimant had moderate limitations in understanding, remembering, or applying information, moderate limitations in interacting with others, marked limitations in concentrating, persisting, or
maintaining pace, and marked limitations in adapting or managing oneself (23F; 24F).(R. at 26.) The ALJ ultimately afforded these opinions "little weight," stating:
Although Dr. Waid had the benefit of examining the claimant prior to his opinions, Dr. Waid is not a treating source who had the benefit of examining the claimant consistently over time to determine her overall functioning. Likewise, Dr. Waid's assessments for moderate to marked limitations contradict the claimant's own subjective reports that she is able to take care of her son, she enjoys visiting with her family, she goes to the movies with her mother, she attends church, she is able to prepare simple meals, and she is able to manage her finances (Hearing Testimony; 5E). Moreover, the claimant's longitudinal mental health treatment notes show that with medication, the claimant appears fully oriented with cooperative behavior, good hygiene, appropriate eye contact, cooperative behavior, logical thoughts, no hallucinations, clear communication, occasionally depressed moods and anxious affects, and intact concentration (1F/15, 18, 21, 25, 27-32; 8F/3; 11F/2, 5, 8; 15F/2, 5, 11, 14; 18F/23, 45, 61, 70; 22F/4). In addition, Dr. Waid's general assessment that the claimant could be unable to sustain work activity goes to the issue of disability that is reserved for the Commissioner (20 CFR 404.1527(e)). Thus, the undersigned gives little weight to the opinions of Dr. Waid.(R. at 26.)
In addition to the above analysis of Dr. Waid's opinion evidence, the ALJ discussed Dr. Waid's examinations of Plaintiff at length elsewhere in her decision, as well as Plaintiff's mental status exams by others. (R. at 17, 23-24, 26.) The ALJ noted, inter alia: (1) Plaintiff's "mental status exams generally show that she remains fully oriented with logical thoughts, no hallucinations, clear communication, and intact concentration (1F/15, 18, 21, 25, 27-32; 8F/3; 11F/2, 5, 8; 15F/2, 5, 11, 14; 18F/23, 45, 61, 70; 22F/4)" (R. at 17); (2) during her 2015 exams, "Dr. Waid noted that despite the claimant's report of hip and neck pain, her physical complaints did not appear to significantly interfere with her ability to meet the demands of the testing (8F/5). However, Dr. Waid noted that the claimant demonstrated significant weakness on a working memory test, in which she scored in the bottom 9th percentile (8F/5)" (R. at 23) ; (3) Plaintiff's "psychological mental status exams during her orthopedic appointments in 2016 and 2017 show that she generally has a normal mood and affect with appropriate behavior, but did occasionally appear depressed from March through July of 2016 when dealing with the separation from her husband (18F/23, 41, 45, 55, 61-63, 66, 70-72, 86)" (R. at 24); and (4) during the July 27, 2017 exam, Plaintiff "displayed a mild impairment for recall ability and an erratic attention capacity, yet she showed a good ability to sustain her vigilance on the demands of the task during her psychological testing (22F/5)" (R. at 17). In addition, the ALJ discussed the opinion evidence from the State agency mental health consultants, who opined that Plaintiff "could perform simple routine tasks consistent with unskilled work, could have appropriate interaction with coworkers and supervisors, and could adapt to changes in a work setting that require only simple, routine, and repetitive tasks." (R. at 25.)
The ALJ also detailed Plaintiff's hearing testimony and the statements given by Plaintiff on her Function Report, finding her reported activities supported finding Plaintiff is not disabled. (R. at 17-20, 27-28). With respect to Plaintiff's hearing testimony given on August 8, 2017, the ALJ noted Plaintiff's testimony that, inter alia: (1) " she is able to cook, tidy up the house, and care for her son" (R. at 17); (2) Plaintiff lives independently with her son since undergoing her divorce (R. at 18); and (3) Plaintiff "has handicapped parking tags so that she does not have to walk very far into stores" and "she frequent[ly] drops objects with her right hand due to ongoing weakness" (R. at 20). As for Plaintiff's Function Report dated May 22, 2015, the ALJ noted Plaintiff's reports that, inter alia: (1) "she requires reminders to take her medication and is only able to stand long enough or concentrate long enough to prepare simple meals (5E/3)"; (2) Plaintiff "is able to fold clothes and water her small dish garden on the porch (5E/3)" (3) "despite her decreased concentration and memory, she could count change and manage her finances (5E/4)"; and (4) "she is able to follow written instructions, but has difficulty remembering spoken instructions (5E/6)."
Here, Plaintiff argues that the ALJ improperly discounted "Dr. Waid's professional opinion based on minimal activities of daily living and Ms. Mackey's interaction with her immediate family members." (Dkt. No. 12 at 40.) Plaintiff further asserts here that "Dr. Waid's opinion is consistent with that of" Plaintiff's mental health therapist, Megan Mohoney, MA, LPC, and that the ALJ failed to take this into consideration when assessing Dr. Waid's opinion evidence. (Id. at 41.) Finally, Plaintiff argues the ALJ's analysis "fails to consider the fragile nature of Ms. Mackey's stability, including her worsening condition in 2015 and 2016, which ultimately resulted in . . . [Plaintiff's] referral for an emergency psychiatric evaluation, an inpatient hospitalization, and an extended intensive outpatient treatment program." (Id.)
Relatedly, Plaintiff notes that the ALJ denied counsel's request for "the ALJ's assistance in obtaining the Palmetto Behavioral Health records," which Plaintiff contends "is significant evidence consistent with Dr. Waid's assessment." (Id.) Here, Plaintiff is referring to the request her representative submitted in a pre-hearing brief for "[p]sychiatric inpatient and outpatient records, Palmetto Behavioral Health, March-April 2014. If necessary, I would respectfully request that you issue a subpoena for these records because this treatment facility has been extremely slow in responding to medical records requests." (R. at 281.) In her decision, the ALJ denied this request, noting that "the representative did not provide documentation of his efforts to obtain these outstanding records" and finding "that the record contains sufficient evidence to make a determination as to the claimant's mental health impairments." (R. at 12-13.)
Upon careful review, the undersigned finds that the record substantiates the weight afforded to Dr. Waid's opinions. As an initial matter, while the ALJ did mention some of Plaintiff's daily activities in her analysis, she relied upon more than this evidence to discount Dr. Waid's opinions. See Hamlett, 2019 WL 1433779, at *3 ("An ALJ is not categorically forbidden from referencing a claimant's testimony about his daily activities in assessing what weight to give a treating physician's opinion. To the contrary, in declining to give a treating physician's opinion great weight, an ALJ must consider the 'supportability of the source's opinion' and the 'consistency of the opinion with the record,' which includes a claimant's relevant testimony about daily activities." (quoting Testamark v. Berryhill, 736 F. App'x 395, 398 (4th Cir. 2018)). For example, the ALJ also cited Plaintiff's "longitudinal mental health treatment notes" to discount Dr. Waid's opinions, and she noted that Dr. Waid did not have "the benefit of examining the claimant consistently over time to determine her overall functioning." (R. at 26.)
In addition, the ALJ did not ignore the opinion of Plaintiff's mental health therapist, Ms. Mahoney. The ALJ expressly discussed Ms. Mahoney's June 29, 2017 letter, "in which she opined that the claimant's ongoing depression and anxiety prevent her from working and therefore, she is disabled (20F)." (R. at 26.) The ALJ afforded this opinion "little weight," stating, inter alia:
Although Ms. Mahoney is a treating source, she did not provide any medical documentation to support her finding that the claimant is unable to work. In fact, the majority of the claimant's mental health treatment notes show that the claimant generally appears fully oriented with cooperative behavior, good hygiene, appropriate eye contact, cooperative behavior, logical thoughts, no hallucinations, clear communication, occasionally depressed moods and anxious affects, and intact concentration (1F/15, 18, 21, 25, 27-32; 8F/3; 11F/2, 5, 8; 15F/2, 5, 11, 14; 18F/23, 45, 61, 70; 22F/4).(R. at 26.) Also, the ALJ expressly considered the evidence cited by Plaintiff pertaining to her alleged "worsening condition in 2015 and 2016," finding that in these records, Plaintiff demonstrated "that she remains fully oriented with logical thoughts, no hallucinations, clear communication, and intact concentration." (R. at 17-18, 638, 774-76, 783-85.) The ALJ noted that Plaintiff "reported undergoing a six-week outpatient therapy program at Palmetto Behavioral Health after discovering her husband's affair, but denied any hospitalization." (R. at 24.) While Plaintiff asserts the records from Palmetto Behavioral Health constitute "significant evidence consistent with Dr. Waid's assessment," there is no evidence to support this argument. Plaintiff has not provided to the Court the records at issue. Further, the ALJ was well within her discretion to deny the request from Plaintiff's representative for a subpoena for these medical records. See Prince v. Berryhill, No. 3:16-cv-175, 2017 WL 2872837, at *11 (E.D. Va. June 19, 2017) ("Courts review an ALJ's decision whether to issue a subpoena under an abuse of discretion standard. . . . Even upon request to issue a subpoena, the ALJ maintains discretion to decide whether to comply with that request.") (citations omitted), adopted by, 2017 WL 2872421 (E.D. Va. July 5, 2017).
In short, the ALJ explained her assessment of Dr. Waid's opinions thoroughly. While Plaintiff may disagree with the ALJ's interpretation of the evidence, it is not for this Court to "re-weigh conflicting evidence" or "substitute [its] judgment" for that of the ALJ. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted).
C. Remaining Allegations of Error
As mentioned above, Plaintiff also argues that remand is necessary because: (1) the ALJ failed to reconcile the weight she afforded the medical opinions when assessing Plaintiff's RFC; and (2) the ALJ failed to properly evaluate Plaintiff's subjective testimony (Dkt. No. 12.) In light of the undersigned's recommendation that this matter be remanded for further consideration of Dr. Roane's opinion evidence, as discussed above, the undersigned need not address these issues as they may be rendered moot on remand. However, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by the Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED. January 6, 2020 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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
Post Office Box 835
Charleston, South Carolina 29402
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).