Opinion
C/A No. 0:19-1345-BHH-PJG
04-28-2020
Pamela Parker, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Pamela Parker, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In June 2015, Parker applied for DIB, alleging disability beginning October 1, 2014. Parker's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A video hearing was held on March 2, 2018, at which Parker appeared and testified and was represented by Charles Haynes, a non-attorney representative. The ALJ issued a decision on June 5, 2018 finding that Parker was not disabled from October 1, 2014 through the date of the decision. (Tr. 20-30.)
Parker was born in 1966 and was forty-eight years old on the alleged disability onset date. She has a high school education and past relevant work experience as a department manager at a manufacturing plant, and a respiratory therapist. (Tr. 235.) Parker alleged disability due to depression, anxiety, and bipolar disorder. (Tr. 236.)
In applying the five-step sequential process, the ALJ found that Parker had not engaged in substantial gainful activity since her alleged onset date of October 1, 2014. The ALJ also determined that Parker's coronary artery disease; hypertension; hyperlipidemia; obesity; adjustment disorder with mixed anxiety and depression; major depressive disorder; post-traumatic stress disorder; and bipolar disorder were severe impairments. However, the ALJ found that Parker did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that Parker retained the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) except she can never climb ladders, ropes, or scaffolds; never work at heights or around dangerous machinery; she can understand, remember, and carry out simple and routine instructions; can make work-related judgments typically required for unskilled work; can have no to rare contact, with the public; can have occasional and superficial contact, with supervisors and coworkers; can deal with changes in a routine work setting on an infrequent and gradual basis; and she would work better with things rather than people.(Tr. 26.) The ALJ found that Parker was unable to perform any past relevant work, but that considering Parker's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Parker could perform. Accordingly, the ALJ found that Parker was not disabled from October 1, 2014 through the date of the decision.
The Appeals Council denied Parker's request for review on March 26, 2019, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). "Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains 'sufficien[t] evidence' to support the agency's factual determinations." Biestek, 139 S. Ct. at 1154 (citation omitted). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Parker raises the following issues for this judicial review:
Issue 1 Opinion evidence. The opinions of Parker's long-term treating specialist, Dr. Boyles, contain work-preclusive limitations which the ALJ improperly rejected. Where the ALJ improperly ignores the opinion evidence, can his decision be supported by substantial evidence?(Pl.'s Br., ECF No. 8.)
Issue 2 Improper hypothetical to the VE. In order to rely on the testimony of a vocational expert, the ALJ must present a hypothetical which precisely sets forth all of Parker's impairments. The ALJ failed to include Parker's moderate limitation in concentration, persistence, or pace, therefore proposing an incomplete hypothetical. Can an ALJ decision based on an incomplete hypothetical be considered a decision based upon substantial evidence?
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Parker's application for benefits was filed, unless otherwise specified.
Parker first challenges the ALJ's evaluation of the opinion evidence. Although she couches her first issue as challenging the evaluation of opinion evidence from "Parker's long-term treating specialist, Dr. Boyles," this appears to be a typographical error as there does not appear to be any opinion evidence from a long-term treating specialist or a Dr. Boyles. However, Parker's sub-issues under this heading argue that the ALJ erred in evaluating the opinion evidence from Dr. Todd Morton, the Commissioner's consultative examiner; Ms. Denise Levereaux, Parker's treating social worker; and Ms. Janice Hage, Parker's treating nurse practitioner. Upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to agree with Parker and recommend that this matter be remanded for further consideration and analysis by the ALJ. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence as the decision provides very little actual analysis as to why the ALJ discounted these opinions and even which aspects of the opinions were discounted.
The law applicable to Parker's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590).
Moreover, ALJs are instructed to apply the above factors—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions, including those from consultative or one-time examiners. 20 C.F.R. § 404.1527(c). With regard to nurse practitioners and social workers, the applicable regulation states that they are not an "acceptable medical source," but rather is considered an "other source." 20 C.F.R. § 404.1513(a), (d)(1); SSR 06-03p, 2006 WL 2329939. These other sources do not command controlling weight in the same manner as acceptable medical sources. 20 C.F.R. § 404.1513(d). Although other sources cannot provide evidence to establish an impairment, evidence from other sources, such as nurse practitioners, may be used to show the severity of the claimant's impairments and how it affects her ability to work. Id.; cf. 20 C.F.R. § 404.1502(a)(7) (eff. Oct. 15, 2018) (including licensed advanced practice nurses as acceptable medical sources for impairments within their licensed scope of practice only "with respect to claims filed . . . on or after March 27, 2017"). Further, the reviewing court should leave untouched an ALJ's decision regarding weight afforded a medical opinion unless the ALJ failed to give sufficient reason for the weight afforded. 20 C.F.R. § 404.1527(d). In weighing these opinions, the ALJ is instructed to apply the same factors applicable to treating medical sources. 20 C.F.R. § 404.1527(f)(1). Importantly, more weight is generally given to the opinions of an examining source than a non-examining one. 20 C.F.R. § 404.1527(c). Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id. The regulations acknowledge that "not every factor for weighing opinion evidence will apply in every case because the evaluation of an opinion from a medical source who is not an acceptable medical source or from a nonmedical source depends on the particular facts in each case." 20 C.F.R. § 404.1527(f)(1).
As stated above, upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the ALJ stated the following with regard to the opinions at issue:
I give some weight to Dr. Morton's opinion that the claimant could maintain her attention on simple repetitive tasks; she would be able to understand, recall, and carry out simple directions; and she would have frequent conflicts with coworkers. While Dr. Morton conducted a thorough evaluation of the claimant's mental functioning, his assessment is based off a one-time examination, and he did not have the entirety of the claimant's medical evidence for review.[] As such, his opinion is not entirely consistent with the treatment records in the file (Exhibit 5F).(Tr. 28.) In the preceding paragraphs, the ALJ briefly summarized Parker's hearing testimony (Tr. 27), and earlier in the opinion, at Step Two of the sequential process, the ALJ briefly summarized the medical records. (Tr. 22-24.) Further, the ALJ found the opinions from the state agency record reviewers were entitled to some weight because they were "somewhat consistent with the treatment records," and considering Parker's subjective allegations and that the reviewers did not examine Parker or have the entire record to review, the ALJ assessed additional limitations. (Tr. 28.)
I give little weight to the opinion evidence provided by Janice Hage. While Ms. Hage has a lengthy treatment history with the claimant, her opinions are overly broad, and she does not provide specific support for the limitations assessed. Further, the severe limitations assessed are inconsistent with the mental status examinations found throughout her own treatment notes, as well as the other treatment records as a whole (Exhibit 7F).
I also give little weight to the opinion of Denise Levereaux. Like Ms. Hage, Ms. Levereaux has a lengthy treatment history with the claimant; however, her treatment records do not support the limitations she assessed. Additionally, Ms. Levereaux's treatment records consistently note that the claimant's therapy attendance was erratic. Additionally, the last entry in Ms. Levereaux's records prior to the claimant being discharged for failure to keep appointments, note that the claimant was interacting more with family and she was buying and selling items on the computer. As such, Ms. Levereaux's assessment is not consistent with her own treatment records or the other records throughout the file (Exhibit 10F).
As pointed out by Parker, the Commissioner arranged for this examination but apparently did not provide Dr. Morton with Parker's records as part of his review. (Tr. 517.)
However, it is unclear which aspects of the challenged opinions are inconsistent with which records, and it is unclear which parts of the opinions were discounted and why. Thus, the ALJ appears to have discounted these opinions without explanation as to how these opinions are inconsistent with and unsupported by the evidence or the clinical findings. With regard to Ms. Levereaux's opinion, the ALJ at least provided two examples of specific reasons she discounted her opinion; however, the ALJ fails to provide any examples or otherwise specify what evidence was inconsistent for the other two opinions. Moreover, with regard to all of the opinions, it is still unclear how any of these opinions are inconsistent with or unsupported by the records or even which opined limitations are inconsistent with the records. While the Commissioner provides some argument and possible factual support for the ALJ's conclusions, the ALJ's decision lacks this analysis. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding meaningful review was precluded where an ALJ gave an opinion limited weight because "the objective evidence or the claimant's treatment history did not support the consultative examiner's findings" but did not specify what objective evidence or treatment history he was referring to). Further, Parker has directed the court to substantial medical evidence and clinical findings that arguably support these opinions, including the consistency of the opinions among the providers who examined and treated Parker.
In summary, upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision to discount the above opinions is supported by substantial evidence. See 20 C.F.R. § 404.1527(c); cf. Mastro, 270 F.3d at 178 (stating that "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight") (internal quotation marks and citation omitted). Even considering the ALJ's decision in its entirety and recognizing that the ALJ appears to have applied the requisite factors, it is unclear which aspects of the evidence the ALJ believed supported her application of the factors. Therefore, the court is constrained to agree with Parker that the ALJ's conclusory evaluation of the opinion evidence leaves the court guessing as to the support for the reasons these opinions were given little or partial weight. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Moreover, where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence.
Accordingly, the court expresses no opinion as to whether further consideration of the opinion evidence by the ALJ should necessarily lead to a finding that the opinions at issue are entitled to additional weight or that Parker is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Parker's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Parker may present her remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. April 28, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).