Opinion
No. 5:17-CV-00218-D
07-12-2018
Kim Ogungbesan, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Kim Ogungbesan instituted this action in May 2017 to challenge the denial of her application for social security income. Ogungbesan claims that Administrative Law Judge ("ALJ") Flora Lester Vinson erred in (1) finding that her impairments did not meet or equal the criteria for the Listing of Impairments, and (2) evaluating the medical opinion evidence. Both Ogungbesan and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 16, 18.
After reviewing the parties' arguments, the court has determined that ALJ Vinson erred in her decision. ALJ Vinson concluded that the evidence does not support a finding that Ogungbesan's impairments met or equaled the criteria for Listing 1.02A, but she failed to discuss the conflicting evidence on Ogungbesan's ability to ambulate effectively. Additionally, ALJ Vinson's evaluation of the medical evidence requires more consideration where she gave significant weight to an examiner without crediting a finding that Ogungbesan could not walk one city block at a reasonable pace on rough or uneven surfaces or explaining why she disputed this particular finding. But ALJ Vinson's properly explained and supported her consideration of the opinion from Ogungbesan's primary care provider. Therefore, the undersigned magistrate judge recommends that the court grant Ogungbesan's motion, deny the Commissioner's motion, and remand this matter to the Commissioner's for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In June 2015, Ogungbesan protectively filed applications for disability benefits and supplemental security income. In both applications, Ogungbesan alleged a disability that began in November 2013. After her claims were denied at the initial level and upon reconsideration, Ogungbesan appeared before ALJ Vinson for a hearing to determine whether she was entitled to benefits. ALJ Vinson determined Ogungbesan was not entitled to benefits because she was not disabled. Tr. at 12-23.
ALJ Vinson found that Ogungbesan had multiple severe impairments: osteoarthritis ("OA") of the bilateral knees, right worse than left; rotator cuff tendonitis, left worse than right; obesity; bilateral thumb tenosynovitis; affective disorder; and anxiety disorder. Tr. at 14. ALJ Vinson found that Ogungbesan's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 15.
ALJ Vinson then determined that Ogungbesan had the RFC to perform a range of light work with additional limitations. Tr. at 17. She can occasionally reach overhead and frequently finger. Id. Ogungbesan can frequently climb ramps and stairs but she can never climb ladders, ropes, or scaffolds. Id. She can also occasionally kneel, crouch, and crawl. Id.
Ogungbesan is limited to performing simple, routine tasks (defined as work that can be learned on the job in one month or less) in a low-stress setting (defined as no quota-based or production-rate work). Id. She can make simple, work-related decisions (defined as decision involving no more than a few variables) and can tolerate few changes (defined as involving no more than a few deviations from the core work duties) in the work setting. Id. Ogungbesan can occasionally interact with the public but she can have no team-type or tandem interaction with coworkers. Id.
ALJ Vinson concluded that Ogungbesan could not perform her past relevant work as a teacher's assistant, housekeeper, rehabilitation aide, or recreational aide. Tr. at 21. But ALJ Vinson determined that, considering her age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that Ogungbesan could perform. Tr. at 22-23. These include: garment sorter, routing clerk, or cleaner. Id. Thus, ALJ Vinson found that Ogungbesan was not disabled. Tr. at 23.
After unsuccessfully seeking review by the Appeals Council, Ogungbesan began this action in May 2017. D.E. 5.
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)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith 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 ALJ must consider the factors in order. At step one, if the claimant is 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
Ogungbesan has a history of pain in her thumbs, shoulders, and knees. Tr. at 14. At a May 2011 visit to Cape Fear Orthopedics, Ogungbesan complained of knee pain aggravated by using stairs and rising from a seated position. Tr. at 329. She reported pain with walking and standing, and improvement with rest and elevation. Id. An examination found significant crepitus with range of motion. Tr. at 331. X-rays of Ogungbesan's knees revealed joint space narrowing and severe patellofemoral (PF) disease with lateral tilt (subluxation) of the patella. Tr. at 328. Injections provided some relief, and Ogungbesan's diagnosis was degenerative joint disease of the bilateral knees. Tr. at 324.
In January 2013, Ogungbesan reported difficulty reaching her left arm above her head and continued knee pain. Tr. at 359. Dr. Leonardo Figueroa, her primary care physician, noted pain with abduction in the left shoulder and crepitus in the bilateral knees. Tr. at 360. Nine months later, Ogungbesan complained of bilateral hand pain with occasional numbness. Tr. at 356. An examination found positive Phalen's signs bilaterally and Dr. Figueroa assessed carpal tunnel syndrome. Tr. at 357.
The next month, providers diagnosed Ogungbesan with left trigger finger and polyarthralgias because of her hand and knee pain. Tr. at 354-55. Later that month, Ogungbesan visited Fayetteville Orthopedic Clinic for pain in her left knee and shoulder, which she rated as seven on a scale from one to ten. Tr. at 366. An examination showed effusion, tenderness to palpitation, and mild crepitus. Tr. at 367. X-rays of her knees revealed mild to moderate tricompartmental degeneration with joint space narrowing, sclerosis, spurring on the left, and lateral joint space narrowing on the right. Tr. at 385. Left should x-rays showed acromioclavicular joint degeneration with possible AC separation. Id.
In December 2013, Ogungbesan reported multiple joint pain and hand numbness. Tr. at 377. An examination showed mild PF pain and severe PF crepitus. Tr. at 378-79.
One month later, Dr. Kim Barrie examined Ogungbesan's hands. Afterward, she diagnosed Ogungbesan with early stenosing tenosynovitis. Tr. at 375. Dr. Barrie administered injections. Id.
Ogungbesan complained of persistent and significant knee pain when she returned to Fayetteville Orthopedic Clinic later that month. Tr. at 373. An examination noted a limited range of motion, reduced motor strength, and crepitus. Id. Providers observed she had not made significant improvement with treatment. Id. Ogungbesan's physical therapy failed to progress because of her pain. Tr. at 369.
Two weeks later, Ogungbesan underwent MRIs of her knees. Tr. at 345-47. The right knee had mild effusion, mild degenerative changes in the joint secondary to degenerative subchondral cyst formation, and intrasubstance changes in the menisci. Id. The left knee had a small Baker's cyst, mild effusion, and moderate tricompartmental degenerative changes with secondary degenerative subchondral cyst formation in the posterior aspect of the left patellar. Id.
In February 2014, Dr. Chris Barnes at Fayetteville Orthopedic Clinic discussed Ogungbesan's treatment options. Tr. at 370. His examination noted moderate lateral joint line tenderness of the left knee, significant PF crepitus, and positive PF grind test bilaterally. Id. He opined that she was not a candidate for arthroscopy and that she was too young for a total knee replacement. Id. He administered injections. Id.
The injections provided relief for only a few weeks, and the next month Ogungbesan reported continuing pain rated as seven on a scale of one to ten. Tr. at 393. An examination revealed significant medial line joint tenderness, mild lateral joint line tenderness moderate PF pain, and moderate PF crepitus in the left knee. Tr. at 394.
The next month, Ogungbesan returned to Dr. Figueroa for pain in her left shoulder, knees, and thumbs. Tr. at 453. Ogungbesan reported that she could no longer afford care from an orthopedist, so Dr. Figueroa continued to treat her orthopedic complaints in 2014, 2015, and 2016. Tr. at 444-67, 471-78, 5219-24, 561-68.
In May 2015, Dr. Figueroa issues a Medical Source Statement noting Ogungbesan's hand, shoulder, and knee pain. Tr. at 560. His examination showed knee crepitation and positive Phalen's signs in the bilateral knees. Tr. at 561. Dr. Figueroa opined that Ogungbesan could lift no amount of weight. Tr. at 560. She could sit for four hours in an eight-hour workday and stand for 15 minutes for a total of one hour in an eight-hour workday. Id. Dr. Figueroa concluded that she could occasionally bend, stoop, and balance, and that she could occasionally perform fine and gross manipulations. Id.
Four months later, Dr. Christopher LaCroix conducted a consultative examination. Tr. at 484-85. Ogungbesan displayed a limited range of motion in her shoulders and knees but she had a steady gait. Tr. at 484. Dr. LaCroix noted tenderness, muscle tightness, and spasming in her spine as well as tenderness in the tibial tuberosity. Id. He assessed osteoarthritis of the bilateral knees and rotator cuff tendonitis. Id. Dr. LaCroix felt Ogungbesan had a guarded prognosis. Id. Although she required no assistive device to ambulate, Dr. LaCroix opined that Ogungbesan would be unable to walk one city block at a reasonable pace over rough or uneven surfaces. Tr. at 495.
In February 2015, Dr. Figueroa examined Ogungbesan again. Tr. at 523. She reported that her knee would give way when walking. Id. Dr. Figueroa observed lower trapezius tenderness, positive bilateral Phalen's signs, and mild anterior knee crepitation bilaterally. Id. He assessed carpal tunnel syndrome and knee pain. Id.
D. Listing Impairment
Ogungbesan contends that ALJ Vinson erred by finding that her impairments did not meet or medically equaled Listing 1.02A. The Commissioner maintains that the evidentiary record supports the ALJ Vinson's finding. The court finds that a determination of whether substantial evidence supports the step three finding cannot be made given the conflicting evidence and lack of resolution on whether Ogungbesan can ambulate effectively.
1. Overview of Listing of Impairments
The Listing of Impairments details impairments that are "severe enough to prevent an individual from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). "The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants "whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background").
The claimant has the burden of demonstrating that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, is insufficient to establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D.N.C. Dec. 10, 2010) ("Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.").
An ALJ need not explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must provide a coherent basis for his step three determination, particularly where the "medical record includes a fair amount of evidence" that a claimant's impairment meets a disability listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Where such evidence exists but is rejected without discussion, "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In reviewing the ALJ's analysis, it is possible that even "[a] cursory explanation" at step three may prove "satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion." Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (citing Smith v. Astrue, 457 F. App'x 326, 328 (4th Cir. 2011)). Nevertheless, the ALJ's decision must include "a sufficient discussion of the evidence and explanation of its reasoning such that meaningful judicial review is possible." Id.
2. Listing 1.02A
At step three, ALJ Vinson found that Ogungbesan's impairments did not meet the criteria in several sections of the Listing of Impairments. Tr. at 15. In referencing Listing 1.02A, ALJ Vinson recited the Listing criteria and noted, in conclusory form, that Ogungbesan had not met the necessary elements. Id.
Listing 1.02, entitled "Major dysfunction of a joint(s) (due to any cause), is
[c]haracterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and finding on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s).20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02. Where, as here, the lower extremity joint is affected, a claimant must also show "[i]nvolvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b[.]" 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02B.
The Regulations further define the inability to perform fine and gross movements effectively.
(1) Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. . . [E]xamples of ineffective ambulation include, but are not limited to, . . . the inability to walk a block at a reasonable pace on rough or uneven surfaces . . . The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.
As this court has held, "[t]he ALJ is only required to explicitly identify and discuss relevant listings of impairments where there is ample evidence in the record to support a determination that an impairment meets or medically equals a listing." Kelly v. Astrue, No. 5:08-cv-289-FL, 2009 WL 1346241, at *14 (E.D.N.C. May 12, 2009) (internal quotation marks omitted); see Cook, 783 F.2d at 1172-73 (requiring an ALJ to "explain the reasons for the determination that [plaintiff's condition] did not meet or equal a listed impairment" where "there was ample evidence in that record" to support such a finding). Because the evidence suggests that Ogungbesan's impairments potentially meet or equal Listing 1.02A, ALJ Vinson failure to discuss the elements of this Listing with the evidence in the record leaves a reviewing court unable to determine her specific reasons for finding that Ogungbesan's impairments do not meet or equal the criteria of the Listings.
Ogungbesan contends, and the Commissioner does not dispute, that the evidence demonstrates that she meets the other criteria of Listing 1.02A, (gross anatomical deformity and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and finding on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s)). --------
The Court of Appeals for the Fourth Circuit recently discussed an ALJ's findings at step three and the role of the district court in reviewing those conclusions. See Fox v. Colvin, 632 F. App'x 750 (4th Cir. 2015). In Fox, the Fourth Circuit noted that the ALJ conducted a conclusory analysis at step three by stating that he had considered the Listings. Id. at 755. It also noted that the Commissioner invited the court to correct this deficiency by finding that substantial evidence supported the ALJ's decision. Id. Finding that the district court erred by engaging in an analysis that the ALJ should have performed in the first instance, the Fourth Circuit concluded that the ALJ's decision failed to provide sufficient findings to allow for "meaningful review." Id. Given the inconsistent evidence about the particular Listing, the Court of Appeals vacated and remanded for further fact-finding by the Commissioner at step three. Id. at 756.
Much like Fox, there is a lack of detailed examination of Listing 1.02A given the evidence in Ogungbesan's medical record. The Commissioner contends that a review of ALJ Vinson's decision suggests that Ogungbesan did not demonstrate an inability to ambulate effectively. She notes the RFC finding for light work infers Ogungbesan can walk up to six hours in an eight-hour workday. She also points out that the record reveals Ogungbesan stated she walked for exercise, did not complain of knee pain at several appointments, and at times displayed full range of motion and normal gait upon examination.
However, at least one examiner, Dr. LaCroix, opined that Ogungbesan was unable to walk one city block at a reasonable pace on rough or uneven surfaces. ALJ Vinson afforded significant weight to Dr. LaCroix's opinions, but did not explain why this particular finding was not fully credited. Despite the Commissioner's arguments to the contrary, Dr. LaCroix's assessment is not inconsistent with his examination, which found Ogungbesan had a steady gait, could ambulate, required no assistive device, had no impediment in her ability to travel, and had only a mildly-impaired ability to stand.
As explained in Fox, it is not the role of the reviewing court to weigh evidence or make findings in the face of conflicting evidence. There is evidence in the record to arguably establish the criteria of Listing 1.02A, but ALJ Vinson's failed to offer specific reasons, with citations to the medical record, why she found Ogungbesan's impairments were not disabling at step three. Without an explanation about how ALJ Vinson concluded that Ogungbesan could ambulate effectively given the contradictory evidence in the record, the undersigned cannot determine if that conclusion is supported by substantial evidence. This warrants remand for further consideration.
E. Medical Opinion Evidence
Ogungbesan contends that ALJ Vinson erred in considering the opinions of Drs. Figueroa and LaCroix. The Commissioner claims that substantial evidence supports ALJ Vinson's consideration of the medical opinion evidence. The court finds no error in ALJ Vinson's evaluation and weighing of this evidence Dr. Figueroa's opinion but, as noted above, ALJ Vinson failed to explain why Dr. LaCroix's finding that Ogungbesan would not be able to walk one city block was not accepted, even though she afforded significant weight to his assessment.
"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 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 offer an explanation of 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. Dr. LaCroix
Ogungbesan contends ALJ Vinson erred in giving significant weight to Dr. LaCroix's opinion but failing to include, or explain the omission of, his finding that she could not walk more than one city block. The Commissioner posits that a review of ALJ Vinson's decision makes it clear that the evidence did not support a finding that Ogungbesan's ability to walk was as restricted as Dr. LaCroix opined. The undersigned finds that ALJ Vinson erred in failing to explain why she rejected Dr. LaCroix's finding on Ogungbesan's ability to ambulate effectively.
Dr. LaCroix conducted a consultative examination in September 2015. Tr. at 19. He noted that Ogungbesan displayed a steady gait, full muscle strength, and abilities to sit, stand, ambulate, pinch, grasp, and raise her arms overhead. Id. Although he found that she did not require an assistive device, Dr. LaCroix concluded that Ogungbesan was unable to walk one city block at a reasonable pace on rough or uneven surfaces. Id. ALJ Vinson found that Dr. LaCroix's assessment was reasonably congruent with both the findings of his examination and the overall record and afforded it great weight. Id.
An ALJ is not bound to accept or adopt all the limitations set out in a medical opinion, even if he accords it significant weight. See Bennett v. Colvin, No. 3:13-CV-01176, 2015 WL 153950, at *13 (M.D. Tenn. Jan. 12, 2015) (holding that ALJ who accords great weight to opinion not required to adopt that opinion wholesale); Razey v. Colvin, No. 14-23, 2014 WL 4792150, at *2 (W.D. Pa. Sept. 23, 2014) (ruling that ALJ not required to adopt a medical opinion wholesale); Lambert-Newsome v. Astrue, No. 11-1141-CJP, 2012 WL 2922717, at *6 (S.D. Ill. July 17, 2012) (noting that merely because ALJ gave great weight to an opinion "does not mean he was required to adopt it wholesale"); Irvin v. Astrue, No. EDCV 11-23-AJW, 2012 WL 870845, at *2-3 (C.D. Cal. March 14, 2012) (finding that, although ALJ gave great weight to medical source opinion, he did not err in implicitly rejecting one limitation from that opinion); Armentrout v. Astrue, No. 3:10-cv-504, 2011 WL 4625931, at *7 (E.D. Va. June 2, 2011) ("While the ALJ assigned 'significant' probative weight to the opinion, the ALJ was not then required to adopt every limitation and incorporate them into the RFC analysis."), adopted by, 2011 WL 4625912 (E.D. Va. Oct. 3, 2011). However, the Fourth Circuit has noted that remand may be appropriate where "inadequacies in the ALJ's analysis frustrate meaningful review[.]" Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. June 16, 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)).
While Dr. LaCroix concluded that Ogungbesan could not walk one city block at a reasonable pace on a rough or uneven surface, the RFC determination limited her to light work, which would reflect walking or standing up to six hours in an eight-hour workday. As a result, the RFC finding appears inconsistent with this assessment that carried significant weight in ALJ Vinson's decision. ALJ Vinson does not explain how she resolved this conflict. It is unclear if ALJ Vinson knew that Dr. LaCroix's specific findings about Ogungbesan's ability to walk would fall below the parameters for light work, as it is defined by the Department of Labor, or whether she adopted some, but not all, of Dr. LaCroix's conclusions.
The court finds that ALJ Vinson's analysis is insufficient to permit meaningful review. As the fact-finder in the first instance, it is the ALJ, not this court, who has the responsibility to make findings of fact and resolve evidentiary conflicts. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Because ALJ Vinson's decision fails to explain the conflict between Dr. LaCroix's assessment and the RFC determination, her analysis is insufficient. See Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (per curiam) (stating that an ALJ has a "duty of explanation" of what informed his decision). As a result, further consideration of this evidence warrants remand.
2. Dr. Figueroa
Ogungbesan argues that ALJ Hall erred in assigning partial weight to the May 2015 Medical Source Statement of Dr. Figueroa, her treating provider. She also asserts that ALJ Hall failed to incorporate his restriction on Ogungbesan's use of her hands despite finding that it was generally consistent with the overall record. The Commissioner maintains, and the undersigned agrees, that ALJ Hall properly evaluated the assessment from this provider. The RFC also limits Ogungbesan's capacities to handle and manipulate, although these limitations are not as restrictive as Dr. Figueroa assessed.
Dr. Figueroa's May 2015 Medical Source Statement concluded that Ogungbesan could stand for 15 minutes at one time, up to a total of 60 minutes in a workday; sit four hours at one time, up to eight hours in one workday; never lift any weight; occasionally bend, stoop, and kneel; occasionally perform fine and gross manipulations with her hands; and frequently raise the left arm over shoulder level but only occasionally lift the right arm over shoulder level. Tr. at 20. ALJ Vinson afforded this assessment partial weight. Id. She remarked that Dr. Figueroa's opinion was too restrictive and unsupported by his own treatment notes. Tr. at 21. ALJ Vinson noted, however, that Dr. Figueroa's limitations on hands for manipulations and overhead reaching was generally consistent with the overall record. Id.
Substantial evidence supports ALJ Vinson's consideration of this provider's findings. Dr. Figueroa noted generally normal exam findings in February 2014. In June 2014, he observed mild findings in Ogungbesan's thumbs and knees, but later visits in October 2014, and March, April, and May 2015 made no such findings. Following his May 2015 Medical Source Statement Dr. Figueroa's treatment notes reflect some pain and only mild limitations, such as mild swelling, crepitus, and tenderness, tr. at 431, and crepitation and signs related to carpal tunnel syndrome, tr. at 561. Such findings both before and after his Medical Source Statement conflict with the significant limitations he assessed in it. Thus, ALJ Vinson's assignment of partial weight to it was not improper.
While ALJ Vinson found Dr. Figueroa's restrictions on Ogungbesan's abilities to manipulate and reach overhead were generally consistent with the record, she was not required to adopt his exact findings. The RFC determination limited Ogungbesan to occasional overhead reaching, a more-restrictive finding than Dr. Figueroa's assessment which permitted occasional overhead reaching on the right but frequent overhead reaching on the left. Tr. at 17, 21. The RFC's limitation on manipulations, allowing frequent fingering, was less restrictive than Dr. Figueroa assessed. Id. The RFC determination finds support from the state agency physician, who opined that Ogungbesan could occasionally reach and frequently finger. Tr. at 93-94.
As substantial evidence supports ALJ Vinson's findings that Dr. Figueroa's assessment was inconsistent with the record, she did not err in assigning his opinion partial weight. Moreover, although Dr. Figueroa's limitation for manipulating and overhead reaching was generally consistent with the record, ALJ Vinson's RFC determination reflected limitations in these areas, but did not have to adopt his precise restrictions.
Finding no error in ALJ Vinson's evaluation of Dr. Figueroa's assessment, the court should reject Ogungbesan's argument on this issue.
III. Conclusion
For the forgoing reasons, the court recommends granting Ogungbesan's Motion for Judgment on the Pleadings (D.E. 16), denying the Commissioner's Motion for Judgment on the Pleadings (D.E. 18), and remanding the matter to the Commissioner for further consideration.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party 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)(l); 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.
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 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 Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: July 12, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge
1.00B2b.