Opinion
No. 7:19-CV-114-D
06-25-2020
DELLE MARTINEZ, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-23, -26] pursuant to Fed. R. Civ. P. 12(c). Claimant Delle Martinez ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on January 11, 2017, alleging disability beginning January 14, 2013. (R. 13, 194-97). Her claim was denied initially and upon reconsideration. (R. 13, 76-119). A hearing before the Administrative Law Judge ("ALJ") was held on October 18, 2018, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 13, 34-75). On January 15, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 10-33). On April 24, 2019, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the following errors: (1) the ALJ erred in weighing Claimant's Department of Veterans Affairs ("VA") disability rating, and (2) the ALJ's decision is internally inconsistent because the ALJ found that Claimant was more limited than certain medical opinions would suggest, but the ALJ did not include in the RFC all the limitations contained in those opinions. Pl.'s Mem. [DE-24] at 7-16.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment from January 14, 2013, the alleged onset date, to September 30, 2017, the date last insured. (R. 15). Next, the ALJ determined Claimant had the following severe impairments: post-traumatic stress disorder ("PTSD"), generalized anxiety disorder/panic disorder, depression/mood disorder, anemia, degenerative disc disease, and chronic pain syndrome. Id. The ALJ also found Claimant had non-medically determinable impairments of alcohol abuse/dependence, fibromyositis/fibromyalgia, and head trauma. (R. 15-16). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 16-18). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in a mild limitation in understanding, remembering, or applying information and moderate limitations in interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 17-18).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
[T]he claimant can reach overhead occasionally bilaterally, but frequently reach in all other directions, push, pull, operate hand controls, handle, finger and/or feel bilaterally. She can frequently climb ramps and stairs, but occasionally climb
ladders, ropes or scaffolds. The claimant can frequently balance, stoop, kneel and/or crouch. The claimant can crawl occasionally. She must avoid concentrated exposure to workplace hazards, such as dangerous moving machinery and unprotected heights. The claimant is generally able to understand and perform simple, routine, repetitive tasks, and is able to maintain concentration, persistence or pace to stay on task for periods of 2 hours at a time over the course of a typical 8-hour workday in order to perform such tasks, in a low stress work setting, which, in addition [to] the nature of the work being performed, is also defined by the work setting not being production-pace or quota-based; rather, the claimant requires a goal-oriented job primarily dealing with things instead of people, with no more than occasional social interaction with supervisors and/or coworkers, but no work with the public as part of the job, such as sales or negotiation, which does not include incidental or casual contact with the public as it might arise. The claimant is limited to no more than occasional changes in a work setting.(R. 18-24). In making this assessment, the ALJ found Claimant's statements about her limitations not fully consistent with the medical and other evidence. (R. 19).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as a hospital corpsman, unit clerk, and ID clerk. (R. 24). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined that through the date last insured, Claimant was capable of adjusting to the demands of other employment opportunities that existed in significant numbers in the national economy. (R. 24-25).
V. DISCUSSION
A. The ALJ erred in weighing Claimant's VA disability rating.
Claimant contends the ALJ erred in failing to give substantial weight to her VA disability rating. Pl.'s Mem. [DE-24] at 7-13. On March 7, 2014, the VA issued a Rating Decision in which Claimant was determined to be 100% disabled. (R. 299-303). The VA evaluated Claimant's "generalized anxiety disorder and specific phobia with alcohol abuse" and found that Claimant has "experienced significant progression in your symptoms of mental disorder and . . . [she] now [has] a total occupational and social impairment due to signs and symptoms of service-connected mental disorder." (R. 300). Claimant's 100% evaluation for her generalized anxiety disorder was based on impaired impulse control; near-continuous depression affecting the ability to function independently, appropriately, and effectively; near-continuous panic affecting the ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene; suicidal ideation; difficulty in establishing and maintaining effective work and social relationships; disturbances of motivation and mood; flattened affect; panic attacks more than once a week; anxiety; chronic sleep impairment; depressed mood; mild memory loss; and suspiciousness. (R. 301).
In Bird v. Commissioner, the Fourth Circuit noted that "both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability." 699 F.3d 337, 343 (citation omitted). "Thus, . . . in making a disability determination, the SSA must give substantial weight to a VA disability rating" unless the record clearly demonstrates that a lesser weight is appropriate. Id. ("[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability . . . 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."). If the ALJ gives a decision less than substantial weight, "the ALJ must adequately explain his reasoning; otherwise, [the court] cannot engage in a meaningful review." Woods v. Berryhill, 888 F.3d 686, 692-93 (4th Cir. 2018) (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). "For example, an ALJ could explain which aspects of the prior agency decision he finds not credible and why, describe why he finds other evidence more credible, and discuss the effect of any new evidence made available after [the agency] issued its decision." Id. at 693. A "generic explanation, which could apply to every [agency] decision, is neither persuasive nor specific" and is insufficient. Id.
The ALJ considered the VA's decision as follows:
Even though the undersigned finds alcohol abuse/dependency is not a severe, medically determinable impairment for the period at issue, the undersigned notes Social Security Rules and Regulations require an evaluation of materiality of substance use for disability, whereas the VA rating seemingly just includes substance use as part of the 100% rating. However, the undersigned notes the standards used by the VA in determining disability are completely different than those used by the Social Security Administration, and the undersigned is not bound by the findings set forth in the claimant's Rating Decision, even though VA ratings are generally entitled to substantial weight in the 4th Circuit (Bird), unless the record supports giving the ratings less weight. The undersigned notes VA ratings are based on limited information and certainly do not take into account the factors required by the Social Security disability sequential evaluation; and, the individual who rates the claimant's conditions for the VA is not necessarily a medical professional, and is clearly not privy to the longitudinal record before the undersigned. Furthermore, the undersigned notes an opinion on whether an individual is disabled goes to an issue reserved to the Commissioner and therefore cannot be given special significance. The undersigned finds other record evidence, as discussed herein, is more persuasive. The claimant's residual functional capacity represents limitations that account for the issues noted in the VA rating and the record from a longitudinal standpoint.(R. 24-25).
The ALJ's analysis is insufficient because it is generic and not specific to the record in this case. Woods, 888 F.3d at 693. Defendant contends that because the ALJ addressed his finding that Claimant's alcohol dependency was not a medically determinable impairment, the ALJ gave a case-specific reason for discounting the VA decision. Def.'s Mem. [DE-27] at 11. However, the ALJ merely recited his own finding regarding Claimant's alcohol dependency and then compared the Social Security Rules and Regulations to the manner in which a VA decision includes substance abuse in its rating. (R. 24). The ALJ's reasoning that "Social Security Rules and Regulations require an evaluation of materiality of substance use for disability, whereas the VA rating seemingly just includes substance use as part of the 100% rating" could be said of any case and is not specific to Claimant's record. (R. 24). The remainder of the ALJ's analysis is likewise generic. The ALJ notes that the VA standards are different from the SSA's, the VA ratings are based on limited information, the VA does not use the SSA's sequential evaluation process, the individual who determines the VA rating is "not necessarily a medical professional" and is "not privy to the longitudinal record before the undersigned," and "an opinion on whether an individual is disabled goes to an issue reserved to the Commissioner and therefore cannot be given special significance." (R. 24-25). The ALJ's rationale could apply to any agency decision. See Woods, 888 F.3d at 693. The ALJ lastly stated that "other record evidence, as discussed herein, is more persuasive," and the RFC "represents limitations that account for the issues noted in the VA rating and the record from a longitudinal standpoint." (R. 24-25). However, the ALJ did not specify which evidence is more persuasive or how the RFC accounts for issues noted in the VA decision. See Woods, 888 F.3d at 693 (holding that to adequately explain discounting an agency decision, "an ALJ could explain which aspects of the prior agency decision he finds not credible and why [and] describe why he finds other evidence more credible." (emphasis added)); David v. Berryhill, No. 7:17-CV-157-FL, 2018 WL 5291862, at *8 (E.D.N.C. May 30, 2018) ("While Bird permits an ALJ to assign lesser weight to a VA disability finding, the reasons for doing so must be sound. The presumption of substantial weight due such determinations is not rebutted where, as here, the ALJ's explanation merely concludes that the VA disability finding is based upon different criteria and addresses only the diagnosis and treatment, not the resulting limitations, of a claimant's conditions."), adopted by 2018 WL 4664129 (E.D.N.C. Sept. 28, 2018). Remand is appropriate for the ALJ to more thoroughly weigh the VA disability rating and explain its weight in specific, non-generic terms.
B. The ALJ did not err in weighing the opinion evidence.
Claimant contends the ALJ erred in failing to resolve material inconsistencies in the ALJ's evaluations of the medical opinion evidence and the RFC assessment. Pl.'s Mem. [DE-24] at 13-16. Claimant argues that the ALJ's decision is inconsistent in that the ALJ failed to adopt all the limitations contained in Dr. Richard Carlson's and Dr. Linda Tyrrell's opinions, but the ALJ found that the record supports greater limitations than those contained in the opinions. Id.
On January 9, 2016, Dr. Carlson examined Claimant and concluded:
She is capable of managing her funds. She can perform simple and more detailed and complex tasks. She accepts instructions well. She does not appear to have difficulty interacting with others, such as in the workplace with co-workers and the public. I believe she could perform work activities on a consistent basis. She may have difficulty maintaining regular attendance with a normal workday and workweek or dealing with stressors in the workplace.(R. 698). The ALJ summarized the evaluation and gave Dr. Carlson's opinion partial weight because although it was consistent with his exam, "the opinion is based on a single examination, and the undersigned finds the longitudinal treatment records support greater limitations." (R. 20-22).
For the most part, the RFC is more restrictive than Dr. Carson's opinion. (R. 22). Dr. Carson determined that Claimant can "perform simple and more detailed and complex tasks" and can "accept[] instructions well," but the ALJ limited Claimant to "understand and perform simple, routine, repetitive tasks;" Dr. Carson found that Claimant "does not appear to have difficulty interacting with others," but the ALJ limited Claimant to occasional interaction with supervisors and only incidental or casual contact with the public; and Dr. Carson found that Claimant "could perform work activities on a consistent basis," but the ALJ limited Claimant to maintaining "concentration, persistence or pace to stay on task for periods of 2 hours at a time." (R. 18, 698). The only limitation in Dr. Carlson's opinion that does not have a corresponding, more restrictive counterpart in the RFC is Dr. Carlson's finding that Claimant "may have difficulty maintaining regular attendance with a normal workday and workweek or dealing with stressors in the workplace." (R. 698). The ALJ did not include a limitation for attendance, but he did find that Claimant is limited to a low stress work setting. (R. 18).
Similarly, the ALJ gave partial weight to Dr. Tyrrell's opinion because she, along with the other State agency medical and psychological consultants, "failed to fully consider the claimant's subjective complaints," and the ALJ found that greater limitations were warranted. (R. 21). The RFC generally mirrors Dr. Tyrrell's opinion. Dr. Tyrrell concluded that Claimant "appears to retain the mental capacity for the sustained performance of relatively simple routine repetitive tasks in relatively undemanding work settings that do not require intensive interpersonal relating and that require no more than two hours at the time of maintenance of attention and concentration." (R. 93). The ALJ limited Claimant to "simple, routine, repetitive tasks;" a "low stress work setting;" "no more than occasional social interaction with supervisors and/or co-workers, but no work with the public as part of the job;" and staying on task for two hours at a time. (R. 18). Dr. Tyrrell found that Claimant "may have some difficulties understanding and remembering detailed instructions but is able to understand and remember short and simple instructions," but the ALJ did not limit Claimant to short and simple instructions. (R. 18, 92).
Claimant cites no authority requiring the ALJ to adopt all the limitations in an opinion when the ALJ determines that Claimant's limitations are greater than those described in an opinion. Even when an ALJ gives significant weight to a medical opinion, "an ALJ is not bound to accept or adopt all the limitations set forth therein." Morgan v. Colvin , No. 5:15-CV-266-D, 2016 WL 4217822, at *5 (E.D.N.C. July 21, 2016) (collecting cases), adopted by 2016 WL 4218333 (E.D.N.C. Aug. 9, 2016); see also Eddie v. Berryhill, No. 5:16-CV-801-D, 2017 WL 4002147, at *4 (E.D.N.C. Aug. 24, 2017) ("the ALJ was not required to adopt fully the limitations suggested by Dr. Wilson's opinion because he assigned it great weight" ), adopted by 2017 WL 3995813 (E.D.N.C. Sept. 11, 2017); Gallion v. Berryhill, No. 5:16-CV-00312-FL, 2017 WL 3431915, at *5 (E.D.N.C. July 26, 2017); Bundy v. Colvin, No. 5:14-CV-55-FL, 2015 WL450915, at *5 (E.D.N.C. Feb. 3, 2015). Here, the ALJ formulated an RFC with equal or more restrictive limitations than most of those contained in Dr. Carlson's and Dr. Tyrrell's opinions. The ALJ's failure to adopt all of the limitations, i.e., a limitation for absences and to understanding short and simple instructions, does not leave the court unable to trace the ALJ's reasoning in discounting those opinions or in formulating the RFC. The ALJ was not required to adopt the opinions wholesale, Morgan, No. 2016 WL 4217822, at *5, and because most of the limitations found in the opinions are also found in the RFC in equal or greater restrictions, the ALJ did not fail to build an accurate and logical bridge from his finding that greater restrictions were warranted to his formulation of the RFC. Accordingly, the ALJ did not err in weighing the opinion evidence.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-23] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-26] be DENIED and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 9, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 25th day of June, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge