Opinion
C/A 9:22-cv-04494-BHH-MHC
12-08-2023
Rosa M.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly Kcherry United State Magistrate Judge
Plaintiff Rosa M. (Plaintiff) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying her claim for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be remanded for further administrative proceedings.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 11.
Plaintiff applied for DIB and SSI on April 11, 2020. R.pp. 276, 285. She alleged disability beginning on March 15, 2019, caused by multiple physical and psychological impairments. R.pp. 19, 276-91, 342. The state agency denied her claims initially and on reconsideration. R.pp. 130, 180.
As noted by the Commissioner, Plaintiff previously applied for DIB and SSI in August 2016. ECF No. 13 at 2; R.p. 69. That application is not at issue here.
On April 19, 2022, a hearing was held before an ALJ. Plaintiff, who was represented by counsel, and an impartial vocational expert appeared and testified. R.pp. 36-65. On April 28, 2022, the ALJ issued a decision finding that Plaintiff was not disabled under the Act during the relevant period. R.pp. 19-30. On October 24, 2022, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision final. R.pp. 1-3. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.”Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled from the alleged onset date of March 15, 2019. R.pp. 1930. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since March 15, 2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: residuals from abdominal surgeries; arthritis; asthma; adjustment disorder with depression and anxiety (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except she can frequently handle and finger bilaterally. She must avoid frequent exposure to irritants such as fumes, odors, dust, gases, and poorly ventilated areas. She is limited to a low stress job, defined as only occasional decision making required. She is limited to occasional interaction with the public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 16, 1963 and was 55 years old, which is defined as an individual of advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
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 significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from March 15, 2019, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).R.pp. 22-30.
IV. DISCUSSION
Plaintiff presents two arguments in support of remand. First, Plaintiff argues that ALJ erred in finding some of her impairments non-severe. ECF No. 12 at 23-25. Second, Plaintiff argues the ALJ failed to properly evaluate medical opinion evidence. ECF No. 12 at 25-35. The Court agrees that the ALJ did not properly evaluate the medical opinion evidence, warranting remand.
A. Medical opinion evidence
Effective March 27, 2017, numerous social security regulations and social security rulings (SSRs) were amended or superseded, making the new regulations applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017), corrected by 82 Fed.Reg. 15132-01, 2017 WL 1105368 (Mar. 27, 2017). Because Plaintiff's claim for benefits was filed after March 27, 2017, the ALJ was required to evaluate the application under 20 C.F.R. §§ 404.1520c and 416.920c.
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Under the new regulations, the ALJ is not to defer to or give any specific weight to medical opinions based on their source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, ALJs are instructed to consider and evaluate the persuasiveness of the opinion evidence by considering the following factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Supportability and consistency are the most important factors to consider, and an ALJ must explain how these factors are considered in the determination or decision. See 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ may, but is not required to, explain how the other factors are considered. 20 C.F.R. §§ 404.1520c(b)(2), (c), 416.920c(b)(2), (c).
This effectively does away with the so called “Treating Physician Rule” under the provisions of 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), whereby an ALJ was directed to give controlling weight to the opinion of a treating physician if it was well supported by medically-acceptable clinical and laboratory diagnostic techniques and was not inconsistent with the other substantial evidence of record. In addition, 20 C.F.R. §§ 404.1527(c)(5) and 416.927(c)(5) provided that ALJ's should “generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a medical source who is not a specialist.”
This represents another significant departure from the requirements of 20 C.F.R. §§ 404.1527(c) and 416.927(c), whereby, if the ALJ declined to accord controlling weight to the treating physician's opinion, he was to weigh the medical opinions of record based on all of the following factors: (1) examining relationship; (2) treating relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors that tended to support or contradict the opinion.
The supportability factor looks inward-directing an ALJ to examine: (1) the extent to which the objective medical evidence presented by the medical source supports that medical source's opinion; and (2) whether the medical source supports the opinion with explanation. Conversely, the consistency factor looks outward-directing an ALJ to evaluate a medical source's opinion in comparison to other evidence in the record. Put differently, the ALJ's analysis considers whether the medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
In evaluating the supportability factor, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). “Supportability” denotes “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5853, 2017 WL 168819 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1).
As for the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In other words, “consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(1).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n 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.” Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas v. Comm 'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quotingMascio, 780 F.3d at 636); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe, 826 F.3d at 189 (citation omitted).
Here, Plaintiff argues that the ALJ did not adhere to the new regulations. Specifically, Plaintiff argues the ALJ failed to properly articulate his consideration of the supportability and consistency factors when evaluating the persuasiveness of the opinions given by Plaintiff's treating physician, Doctor Aydrian Thomas, and an independent medical examiner, Nurse Practitioner Scottie Shelley. The Court agrees as to both medical opinions.
1. Doctor Thomas
Doctor Thomas provided six medical source statements that opined on Plaintiff's medical conditions. The opinions were dated January 17, 2017, October 2, 2017, June 12, 2018, September 24, 2020, September 29, 2020, and October 22, 2021. R.pp. 409, 410, 412-13, 493-500, 502, 549.
In the January 17, 2017, statement, Dr. Thomas noted Plaintiff had been a patient of his since 2014. R.p. 409. Dr. Thomas noted Plaintiff had developed a debilitating eye condition called idiopathic iritis, which caused frequent and intense irritation of her eye and interfered with her visual acuity. R.p. 409. Dr. Thomas further noted Plaintiff had developed multiple chemical sensitivities, manifesting as urticaria, allergic rhinitis, allergic conjunctivitis, and asthma. He opined that Plaintiff's sensitivities to numerous household and environmental chemicals significantly impaired her ability to function in a work environment. R.p. 409.
In the October 2, 2017, statement, Dr. Thomas noted Plaintiff continued to have profound issues with her eyes, including blurred vision, intense discomfort, and pruritus. R.p. 410. He opined her symptoms were prohibitive to any activity involving long concentration or focus. R.p. 410. Dr. Thomas also noted Plaintiff had been advised to discontinue allergy injections because of worsening reactions to the protein derivative, and that Plaintiff continued to have chronic congestion. R.p. 410. Dr. Thomas noted Plaintiff's anxiety had worsened since his last statement, and that Plaintiff was visibly anxious during her appointments and appeared to be preoccupied. R.p. 410. He further noted that Plaintiff continued to have moderate to severe chest discomfort, and recommended against any lifting, pushing, pulling, or exertion of any form. R.p. 410.
In the June 12, 2018, physician's statement form, Dr. Thomas opined that Plaintiff had a permanent disability. R.p. 412. Dr. Thomas opined Plaintiff was unable to work or participate in activities to prepare for work, assessing that Plaintiff had a primary disabling diagnosis of multiple chemical sensitivity syndrome and a secondary disabling diagnosis of arthritis. R.pp. 412-13.
On September 24, 2020, Dr. Thomas completed a medical source statement. R.pp. 493-99. Dr. Thomas noted he saw Plaintiff every four to eight months and opined that she was not a malingerer. R.pp. 493-94. He noted Plaintiff had been diagnosed with low back pain, which was characterized as achy and dull, and which occurred daily. R.p. 493. Dr. Thomas noted the pain was moderate in intensity with no clear trigger pattern. R.p. 493. Dr. Thomas opined Plaintiff would be able to sit for fifteen minutes continuously before alternating postures. R.p. 495. He opined Plaintiff would need to alternate postures by walking about fifteen minutes before returning to a seated position. R.p. 495. Dr. Thomas opined Plaintiff would be able to stand or walk a maximum of fifteen minutes before alternating postures by sitting or lying down. R.p. 495. He opined Plaintiff would be able to stand or walk a combined three hours. R.p. 496.
As to Plaintiff's need for breaks, Dr. Thomas opined Plaintiff would need additional rest breaks during an eight-hour workday in order to relieve pain arising from a documented medical impairment. R.p. 496. Dr. Thomas opined Plaintiff would need to rest, lie down, or recline in a supine position for three hours (cumulatively) during an eight-hour workday. R.p. 496. He further opined Plaintiff would be able to sit for a cumulative two hours, stand or walk about for a cumulative three hours, and rest for a cumulative three hours in an eight-hour workday. R.p. 497.
As to physical limitations, Dr. Thomas opined Plaintiff could frequently lift one to ten pounds, could occasionally lift eleven to twenty pounds, and rarely or never lift twenty to fifty pounds. R.p. 497. Dr. Thomas believed Plaintiff could occasionally balance when standing or walking on level terrain, but she could rarely or never stoop. R.p. 497. As to the use of Plaintiff's hands, Dr. Thomas stated Plaintiff could frequently reach bilaterally without leaning, and she could occasionally handle and finger bilaterally. R.p. 498. He also opined Plaintiff would miss more than three days per month because her impairments produced good and bad days. R.p. 499.
In the September 29, 2020, medical source questionnaire, Dr. Thomas noted Plaintiff had been diagnosed with anxiety and had been prescribed Lexapro, but that the medication had not helped her condition. R.p. 502. Dr. Thomas noted psychiatric care had not been recommended. Dr. Thomas noted Plaintiff had orientation to time, person, place, and situation; her thought process was distractible; she had appropriate thought content; her mood and affect were worried/anxious; and that she had adequate attention, concentration, and memory. R.p. 502. Dr. Thomas opined Plaintiff had an adequate ability to: complete basic activities of daily living; relate to others; complete simple, routine tasks; and complete complex tasks. R.p. 502.
On October 22, 2021, Dr. Thomas penned a letter, wherein he detailed a summary of Plaintiff's health issues since he began treating her in 2009. R.p. 549. He noted, inter alia, that Plaintiff had begun to develop joint pain in multiple locations, which he opined was likely related to her atopic tendencies. R.p. 549. He noted Plaintiff began experiencing dyshidrotic eczema primarily involved in the hands, which became so severe that her skin began fissuring on her palm and between her fingers. R.p. 549. He noted this has persisted to the present day and, when it is exacerbated, he opined Plaintiff was unable to use her hands for even the most minimal of activities. R.p. 549. Dr. Thomas noted Plaintiff had other manifestations of eczema which generalized into other parts of her body. R.p. 549. He further noted Plaintiff's joint pain, constant eye pain, and constant eyelid irritation had continued. Dr. Thomas noted Plaintiff had sought assistance from an allergist who had ultimately initiated desensitization injections, but Plaintiff had a reaction to the injections. He also noted Plaintiff's visits had become less frequent because of finances. R.p. 549.
The ALJ considered all of Dr. Thomas's opinions as follows:
The undersigned finds the opinions of Aydrian Thomas, M.D., to not be very persuasive. Dr. Thomas opined in part that the claimant should be considered for Social Security disability due to numerous impairments, and that the claimant could only sit for fifteen minutes continuously, stand and walk for fifteen minutes, needed additional breaks of three hours, could occasionally lift and carry up to twenty pounds and frequently ten pounds, and would miss work more than three days per month. (Exhibit B1F pgs. 7, 8, & 10; B5F pgs. 4-10; B6F; B14) This is inconsistent with and not supported by the above evidence that showed nonfocal neurological exams, 5/5 strength, generally intact sensation, a normal gait, negative Phalen and Tinel testing, negative straight leg raise testing, no muscle atrophy, and no asthma exacerbations, as well as the normal mental exam findings discussed above. (Exhibit B4F pgs. 4 & 7; B7F; B8F; B9F pg. 4; B13F pg. 4; B16F pg. 1).R.p. 28.
Upon review, remand is warranted. As noted above, ALJs are required to articulate their consideration of whether a medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). Because there is no bright line rule for articulating the consideration of the supportability and consistency factors, the ALJ's persuasiveness evaluation quoted above technically adhered to the new regulation requirements because the ALJ articulated his consideration of these factors. See 20 C.F.R. §§ 404.1520c(a)-(b)(2), 416.920c(a)-(b)(2); Revisions to Rules, 82 Fed.Reg. at 5854 (noting “the appropriate level of articulation will necessarily depend on the unique circumstances of each claim”). However, the undersigned has questioned in the past whether dedicating a single sentence to a factor provides a “narrative discussion” that adequately explains the ALJ's reasoning. See Flattery v. Comm'r of Soc. Sec. Admin., No. 9:20-CV-02600-RBH-MHC, 2021 WL 5181567, at *6 (D.S.C. Oct. 21, 2021), report and recommendation adopted sub nom. Flattery v. Kijakazi, No. 9:20-CV-02600-RBH, 2021 WL 5180236 (D.S.C. Nov. 8, 2021). In this case, the undersigned finds the ALJ's persuasiveness evaluation-in which he dedicated a single sentence to articulate his consideration of both factors-fails to provide a narrative discussion of the evidence considered and is not subject to meaningful review.
As an initial matter, the undersigned notes the problem with considering the supportability and consistency factors in a single sentence: the consistency factor encompasses an outward facing inquiry on whether a medical source's opinion is consistent with the evidence from other medical sources and nonmedical sources, while the supportability factor encompasses an inward facing inquiry on whether the medical source's conclusions are supported by his or her own relevant medical evidence and explanations. See Revisions to Rules, 82 Fed.Reg. at 5853; 20 C.F.R. §§ 404.1520c(c)(1)-(2); 416.920c(c)(1)-(2). That is, each factor necessarily requires an ALJ to look at specific evidence that only pertains to one factor. For example, when considering whether a medical source's opinion is supported by his or her own treatment notes and explanations, a different doctor's treatment notes are irrelevant to that inquiry.
Of course, the regulations do not expressly require an ALJ to consider the factors in their own standalone sentence or paragraph. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). However, lumping together both factors into a single sentence runs the risk of the ALJ failing to adequately explain his or her reasoning as to each factor, frustrating any meaningful review. See Monroe, 826 F.3d at 191 (noting the ALJ's failure to include a narrative discussion describing how the evidence supports each conclusion precluded meaningful review where the ALJ gave conclusory analysis of medical opinions and did not adequately explain his reasoning). Such is the case here.
Here, the ALJ found Dr. Thomas's opinions were “inconsistent with and not supported by” evidence in the record, with citations to “Exhibit B4F pgs. 4 & 7; B7F; B8F; B9F pg. 4; B13F pg. 4; B16F pg. 1.” R.p. 28. Upon review, it appears the discussed evidence stemming from these exhibits generally pertain to other medical sources, revealing the ALJ's consideration of the consistency factor. Again, as noted above, the ALJ technically adhered to the new regulation requirements because the ALJ articulated his consideration of the consistency factor.
However, in this instance, technical adherence does little in the way of giving any insight as to the ALJ's thinking, especially with regard to the cited exhibits upon which the ALJ relies. Indeed, the ALJ's citation to Exhibits B7F and B8F are peculiar, as that evidence is the physical consultative examination conducted by Doctor Sushil K. Das, which the ALJ found “to not be very persuasive.” See R.pp. 25, 27. Thus, without any explanation, the undersigned is left to guess at why the ALJ used another medical opinion he found not persuasive as a reason to find Dr. Thomas's opinions unpersuasive.
Furthermore, as pointed out by Plaintiff, the cited evidence showing negative findings do not speak to Dr. Thomas's opinion on Plaintiff's problems with skin fissuring on her palm and between her fingers causing her to be unable to use her hands for even the most minimal of activities or the other manifestations of eczema which generalized into other parts of her body. See R.p. 549; ECF No. 12 at 31-32. In this instance, the use of a single sentence does not bridge the gap between the cited evidence and the ALJ's consideration of the consistency factor. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (noting an ALJ must “build an accurate and logical bridge” from the cited evidence to the ALJ's ultimate conclusion (quoting Monroe, 826 F.3d at 189)). Additionally, as discussed more thoroughly below, the ALJ did not appear to consider whether Dr. Thomas's opinions were consistent with NP Shelley's opinion.
As to the supportability factor, it does not appear that the ALJ considered this factor at all, which was legal error. Indeed, the ALJ did not examine the extent to which Dr. Thomas's own treatment notes supported his opinions. Nor did the ALJ examine Dr. Thomas's written, supporting explanations on the Medical Source Statements, and he did not articulate how these explanations factored into his evaluation of the persuasiveness of Dr. Thomas's opinions. Rather, the ALJ merely stated Dr. Thomas's opinion was “unsupported” by evidence in the record and proceeded to list evidence mostly attributed to other doctors' treatment notes-treatment notes which are irrelevant to whether Dr. Thomas's opinions are supported by his own treatment notes and explanations.
Notably, the ALJ cited to page four of Exhibit B13F, which is a treatment note of Dr. Thomas's. See R.p. 542. This, perhaps, indicates the ALJ's consideration of the supportability factor. However, the cited page merely shows that Plaintiff reported problems with her hands at an October encounter with Dr. Thomas. R.p. 542. With no explanation offered by the ALJ, it is unclear how this single page does or does not support Dr. Thomas's opinions. See Woods, 888 F.3d at 694 (noting an ALJ must “build an accurate and logical bridge” from the cited evidence to the ALJ's ultimate conclusion (quotingMonroe, 826 F.3d at 189)). That is, the ALJ did not connect this evidence to an articulated consideration of the supportability factor while evaluating Dr. Thomas's opinions. Looking at the rest of the treatment note-to which the ALJ did not cite - Dr. Thomas assessed bilateral hand pain, noting Plaintiff has localized metacarpal effusions, edema, and joint swelling and tenderness in the dorsum of the bilateral hands. R.pp. 545-46. If anything, this arguably supports Dr. Thomas's opinion that Plaintiff could only occasionally handle and finger using her bilateral hands, R.p. 498, and his opinion Plaintiff was unable to use her hands for even the most minimal of activities. R.p. 549. In any event, with no meaningful discussion connecting this solitary page to Dr. Thomas's opinions, the undersigned is left to guess at (1) whether the ALJ considered supportability at all and, if he did, (2) what the citation to this single page from Dr. Thomas's treatment notes is supposed to convey. Indeed, dedicating half of a sentence to consideration of the supportability factor runs the risk of failing to provide a narrative discussion allowing for meaningful review. See Monroe, 826 F.3d at 191. Consequently, remand is warranted.
The Court agrees, for the reasons stated in Plaintiff's brief, that these errors were not harmless. See ECF No. 12 at 32.
The Commissioner's arguments to the contrary are unavailing. First, the Commissioner argues generally that “no particular format is needed for articulating [consideration of] the consistency and supportability factors.” ECF No. 13 at 20. The Commissioner further notes that the ALJ need not even use the terms “supportability” or “consistency” in his decision, as long as the ALJ analyzes the factors. See ECF No. 13 at 21.
The Commissioner is correct that the ALJ need not explicitly mention the terms “supportability” or “consistency” in his persuasiveness evaluation. See Hobbs v. Saul, No. 2:20cv00004, 2021 WL 1574421, at *10 (W.D. Va. April 22, 2021) (finding that the ALJ sufficiently addressed the consistency factor even though he did not use the term “consistency” in evaluating the expert's opinion). However, although there is no bright line rule for articulating the consideration of these factors, it must still be obvious from the ALJ's decision that the factors were considered. See Todd A. v. Kijakazi, No. 3:20CV594 (DJN), 2021 WL 5348668, at *4 (E.D. Va. Nov. 16, 2021) (noting under the new regulatory scheme that “the ALJ need not necessarily use the words ‘supportability' or ‘consistency,' as long as the ALJ still performs the requisite analysis of these factors” (emphasis added)).
Here, it is not obvious that the ALJ considered the supportability factor, nor is there any analysis that provides a “narrative discussion” that adequately explains the ALJ's reasoning with regard to Dr. Thomas's opinions. See Monroe, 826 F.3d at 191 (noting the ALJ's failure to include a narrative discussion describing how the evidence supports each conclusion precluded meaningful review where the ALJ gave conclusory analysis of medical opinions and did not adequately explain his reasoning). ALJs should strive to be explicit in their consideration of the supportability and consistency factors so a reviewing court is not left to guess at whether those factors were actually considered. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (“[W]e will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.” (emphasis added)); see also Patterson v. Comm r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (noting the “all too common” problem of ALJs failing to show their work when evaluating claims for social security disability benefits).
To be sure, the ALJ here explicitly stated Dr. Thomas's opinions were “inconsistent with and not supported by” evidence in the record. R.p. 28. However, the mere use of these terms does not satisfy the ALJ's duty to articulate consideration of those factors. See Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341, 354 (4th Cir. 2023) (“Mere acknowledgement of the regulation's existence is insufficient and falls short of the ALJ's duties.”); Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021) (noting, under the prior regulations, that “[w]hile an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion” (first emphasis added)). Although Shelley C. and Dowling were decided under the prior regulations, the “rationale for requiring a sufficiently detailed articulation of how those same factors were applied by the ALJ resounds with equal force in this case as it did in Dowling.” Hardy v. Comm'r of Soc. Sec., 554 F.Supp.3d 900, 909 (E.D. Mich. 2021) (discussing an ALJ's obligation to explain his consideration of the supportability and consistency factors and noting that “[r]esorting to boilerplate language to support a finding of unpersuasiveness does not satisfy that obligation”). Consequently, remand is warranted.
To the extent the Commissioner may be suggesting that the ALJ rejected Dr. Thomas's opinions because they were “based largely on Plaintiff's subjective complaints,” the undersigned is unpersuaded. See ECF No. 13 at 20. The ALJ's decision contains no such discussion-as put forth by the Commissioner-and this Court “cannot accept post-hoc rationalizations not contained within the ALJ's decision.” Hilton v. Astrue, No. CA 6:10-2012-CMC, 2011 WL 5869704, at *4 (D.S.C. Nov. 21, 2011); see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” (first emphasis added)).
2. NP Shelley
On October 24, 2017, NP Shelley evaluated Plaintiff as part of an independent medical evaluation requested by Plaintiff's attorney. R.pp. 403-08. NP Shelley took Plaintiff's reported history, and reviewed the medical records provided. R.pp. 403-04. On examination, NP Shelley noted Plaintiff was anxious and fidgety while sitting in the chair, and that Plaintiff was constantly moving around and moving her extremities. R.p. 404. He noted Plaintiff had small red patches where she was irritated and scratched it to her chest and bilateral arms. R.p. 404. NP Shelley noted he had reviewed records from Piedmont Medical and Family Medical Associates which showed Plaintiff had been seen as far back as August 19, 2009, for chest rash and itching, which was treated for allergic rhinitis and dermatomycosis and treated with Lotrisone cream. R.p. 404. He further noted Plaintiff had been seen multiple times each year for recurrent rashes, sinusitis, contact dermatitis, blurry vision, and recurrent issues. R.p. 404.
NP Shelley diagnosed Plaintiff with contact dermatitis, recurrent iritis, abdominal pain, diarrhea, constipation, recurrent rash, and multiple chemical sensitivity syndrome. R.p. 405. He opined Plaintiff's symptoms significantly impaired her ability to function on a daily basis. R.p. 405.
As to physical limitations, NP Shelley opined Plaintiff was able to sit for only one hour total, stand for two hours total, and walk for one hour total during the entire eight-hour workday. R.p. 406. NP Shelley opined Plaintiff was able to lift and carry five pounds on an occasional basis and never lift or carry more than six pounds. R.p. 406-07. He opined Plaintiff was unable to use her bilateral hands for repetitive actions such as simple grasping, pushing and pull of arm controls, or fine manipulation. R.p. 407. NP Shelly opined Plaintiff was unable to use her bilateral feet for repetitive movements such as pushing and pulling of leg controls. R.p. 407. He further noted Plaintiff was able to bend and reach occasionally, but she was unable to squat, crawl, or climb. R.p. 407. Finally, NP Shelley opined Plaintiff had total restriction in activities involving unprotected heights, being around moving machinery, exposure to marked changes in temperature or humidity, or exposure to dust, fumes, and gases. R.p. 408.
The ALJ considered NP Shelley's opinion as follows:
The undersigned finds the opinion of Scottie Shelley, NP, to not be very persuasive. This source opined that the claimant could not stand or sit more than one to two hours, could not lift or carry more than five pounds, could not use her hands for gripping, grasping, or pushing, and could not function or hold down employment. (Exhibit B1F) This is inconsistent with and not supported by the above evidence that showed nonfocal neurological exams, 5/5 strength, generally intact sensation,
a normal gait, negative Phalen and Tinel testing, negative straight leg raise testing, no muscle atrophy, and no asthma exacerbations. (Exhibit B4F pgs. 4 & 7; B7F; B8F; B9F pg. 4; B13F pg. 4; B16F pg. 1)R.p. 27.
Upon review, remand is warranted. As noted above, ALJ's are required to articulate their consideration of whether a medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). As with the persuasiveness evaluation of Dr. Thomas, the ALJ's use of a single sentence to address both of the supportability and consistency factors frustrates meaningful review.
Here, in finding NP Shelley's opinion not very persuasive, the ALJ gave nearly the same reasons as he did in finding Dr. Thomas's opinions unpersuasive. Additionally, he cited to the same evidence, verbatim. Compare R.p. 27 with R.p. 28. Consequently, the same issues arise when trying to parse the ALJ's reasoning.
The only difference is the added notation referencing “normal mental exam findings discussed above” in relation to Dr. Thomas's opinions. R.p. 28.
As to consistency, the highlighted medical evidence and cited exhibits pertain to other medical sources, revealing the ALJ's consideration of the consistency factor. However, as noted above, the ALJ's citation to Exhibits B7F and B8F leave the undersigned to guess at why the ALJ used another medical opinion he found not persuasive as a reason to find NP Shelley's opinion unpersuasive. See R.pp. 25, 27.
Perhaps more importantly, there is no meaningful discussion of Dr. Thomas's opinions, which, as Plaintiff points out, are arguably consistent with NP Shelley's opinion. This strikes the undersigned as impermissible cherry picking. See Lewis, 858 F.3d at 869 (“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))); Angelena S. v. Kijakazi, No. CV 1:22-1022-SVH, 2022 WL 17974702, at *15 (D.S.C. Dec. 28, 2022) (“The ALJ is not allowed to cherry-pick the record, referencing only the evidence that supports his conclusion as to the persuasiveness of the medical opinion and ignoring evidence to the contrary.”); Robinson v. Saul, No. CV 0:20-1860-RMG-PJG, 2021 WL 2300809, at *4-5 (D.S.C. May 25, 2021) (remanding where the ALJ ignored treatment records supporting the medical provider's opinion), report and recommendation adopted, No. CV 0:20-1860-RMG, 2021 WL 2291834 (D.S.C. June 4, 2021).
The ALJ's string citation that contains a citation to page four of Exhibit B13F, which is a treatment note of Dr. Thomas's, does not obviate the ALJ's need to connect this evidence to an articulated consideration of the consistency factor. With no explanation offered by the ALJ, it is unclear how this single page is or is not consistent with NP Shelley's opinions. See Woods, 888 F.3d at 694 (noting an ALJ must “build an accurate and logical bridge” from the cited evidence to the ALJ's ultimate conclusion (quoting Monroe, 826 F.3d at 189)). Indeed, as already noted above, looking at the rest of the treatment note-which the ALJ did not cite to-Dr. Thomas assessed bilateral hand pain, noting Plaintiff has localized metacarpal effusions, edema, and joint swelling and tenderness in the dorsum of the bilateral hands. R.pp. 545-46. If anything, this is arguably consistent with NP Shelley's opinion that Plaintiff was able to lift and carry five pounds on an occasional basis and never lift or carry more than six pounds, and that she was unable to use her bilateral hands for repetitive actions such as simple grasping, pushing and pull of arm controls, or fine manipulation. R.pp. 406-07.
As to supportability, it does not appear the ALJ considered this factor at all, which was legal error. NP Shelley conducted an in-person evaluation of Plaintiff where NP Shelley physically examined Plaintiff. Additionally, NP Shelley noted medical records were obtained and reviewed as a part of the evaluation process. R.p. 404. NP Shelley's first-hand evaluation and the records he reviewed speaks to the supportability factor; yet, neither were discussed while considering whether NP Shelley's opinion was supported. Frankly, there is no meaningful discussion of how NP Shelley's opined limitations were or were not supported.
To the extent the Commissioner appears to suggest that the ALJ rejected NP Shelley's opinion because it was “based largely on Plaintiff's subjective complaints,” the undersigned is unpersuaded. See ECF No. 13 at 20. The ALJ's decision contains no such discussion-as put forth by the Commissioner-and this Court “cannot accept post-hoc rationalizations not contained within the ALJ's decision.” Hilton, No. CA 6:10-2012-CMC, 2011 WL 5869704, at *4; see also Bray, 554 F.3d at 1225 (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” (first emphasis added)).
In sum, this is the peril of dedicating a single sentence to articulate consideration of both the consistency and supportability factors. The ALJ's persuasiveness evaluation of NP Shelley's opinion falls short of providing the narrative discussion necessary for it to be subject to meaningful review. See Monroe, 826 F.3d at 191 (noting the ALJ's failure to include a narrative discussion describing how the evidence supports each conclusion precluded meaningful review where the ALJ gave conclusory analysis of medical opinions and did not adequately explain his reasoning). On remand, the ALJ should provide a narrative discussion that thoroughly explains his persuasiveness evaluation and explicitly addresses the supportability and consistency factors. See generally Patterson, 846 F.3d at 663 (noting the “all too common” problem of ALJs failing to show their work when evaluating claims for social security disability benefits).
B. Remaining allegations of error
Plaintiff also argues that ALJ erred in finding some of her impairments non-severe. ECF No. 12 at 23-25. Because the Court has determined that the errors in ALJ's persuasiveness evaluations of the medical opinions warrants remand, the Court declines to further address this remaining claim of error. However, upon remand, the ALJ should take such claims of error into consideration. With respect to any remaining claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ's prior decision has no preclusive effect, as it is vacated, and the new hearing is conducted de novo).
V. CONCLUSION
It is RECOMMENDED that the decision of the Commissioner be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative review.