Opinion
No. 5:18-CV-00282-FL
07-16-2019
Thomas Paul Smith, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Thomas Smith instituted this action in June 2018 to challenge the denial of his application for social security income. Smith claims that Administrative Law Judge ("ALJ") Christopher Willis erred in (1) failing to properly explain why he did not accord substantial weight to a disability rating from the Department of Veterans Affairs ("VA"), (2) evaluating the medical opinion evidence, (3) determining Smith's residual functional capacity ("RFC"), and (4) failing to resolve a conflict in the evidence. Smith also challenges ALJ Willis's authority to issue a decision under the Appointments Clause. Both Smith and Defendant Andrew Saul, Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 61, 70.
After reviewing the parties' arguments, the court has determined that ALJ Willis erred in his determination. While the undersigned cannot find any fault in his assessment of Smith's RFC concerning his headaches, other errors warrant more consideration. ALJ Willis's reasons for declining to give the VA disability finding are unsupported by the record. In evaluating the medical opinion evidence, ALJ Willis erred in considering the opinion of one of Smith's providers. And ALJ Willis failed to resolve a conflict between the the testimony of the Vocational Expert ("VE") and the Dictionary of Occupational Titles ("DOT"). Finally, Smith has timely raised an Appointments Clause challenge to ALJ Willis's authority and the validity of his determination. The undersigned magistrate judge therefore recommends that the court grant Smith's motion, deny the Commissioner's motion, and remand this matter to the Commissioner 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 September 2016, Smith applied for disability benefits alleging a disability that began in October 2015. After his claim was denied at the initial level and upon reconsideration, Smith appeared at a hearing before ALJ Willis to determine whether he was entitled to benefits. ALJ Willis determined that Smith was not entitled to benefits because he was not disabled. Tr. at 12-26.
ALJ Willis found that Smith had several severe impairments: post-traumatic stress disorder ("PTSD"), mood disorder, major depressive disorder ("MDD"), history of traumatic brain injury ("TBI") with headaches, gastroesophageal reflux disease ("GERD"), hypertension, hyperlipidemia, diabetes mellitus, hypothyroidism, degenerative joint disease/osteoarthritis, status post surgeries, degenerative disc disease, with a history of remote spinal fusion surgery, and obesity. Tr. at 14. ALJ Willis found that Smith's impairments, alone or in combination, did not meet or equal a Listing impairment. Tr. at 15.
ALJ Willis determined that Smith had the RFC to perform a reduced range of sedentary work. Tr. at 18. Smith is limited to occasional bilateral overhead reaching, but he can frequently reach in all other directions. Id. He can frequently handle, finger, feel, push, pull, and/or operate hand controls bilaterally. Id. Smith can occasionally push, pull, and/or operate foot controls with the right lower extremity. Id.
Smith can occasionally climb ramps and stairs, but he can never climb ladders, ropes, or scaffolds. Id. He is limited to occasional balancing, stooping, kneeling, couching, but no crawling. Id. Smith must avoid concentrated exposure to workplace hazards such as dangerous, moving machinery and unprotected heights. Id. And Smith requires a sit/stand option which will afford him the flexibility to stand for ten minutes every hour. Id.
Smith can understand and perform simple, routine, repetitive tasks and maintain concentration, persistence, and pace to stay on-task for periods of two hours at a time throughout a typical eight-hour workday, with normal breaks. Id. Smith requires a low-stress work setting which, besides the nature of the work being performed, is also defined to mean a work setting that is not at production-pace or quota-based. Id. Smith also requires a goal-oriented job mainly dealing with things rather than people. Id.
Smith should have no more than occasional changes in his work setting and no more than occasional interactions with coworkers and supervisors. Id. And Smith should not work with the public as part of his job, such as sales or negotiations, although incidental or casual contact as it might arise is not precluded. Id.
ALJ Willis concluded that Smith cannot perform his past relevant work as a field artillery support specialist, education technician, transportation manager, or vehicle control officer. Tr. at 24. But considering his age, education, work experience, and RFC, ALJ Willis found that Smith could perform the job of a document preparer, and the document preparer position had a significant number jobs in the national economy. Tr. at 25. Thus, ALJ Willis found that Smith was not disabled. Tr. at 26.
After unsuccessfully seeking review by the Appeals Council, Smith began this action in June 2018. D.E. 1.
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 the determination of 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)). If the Commissioner's decision is supported by such evidence, it must be affirmed. 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 analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently 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
Medical evidence predating Smith's October 2015 disability onset date reveals a history of orthopedic problems stemming from a parachute jump when his was in the Army. Smith had several surgeries on his right knee to correct an ACL injury. Tr. at 1111. Imaging studies from 2004 and 2005 showed tricompartmental osteoarthritis in Smith's right knee. Tr. at 2484. Smith also has a history of back problems, including moderate to severe compression fractures in his thoracic and lumbar spines. Tr. at 2451. Smith has undergone spinal fusion surgery. Tr. at 2485.
Smith also has a history of post-traumatic stress disorder, traumatic brain injury, and headaches that predate his October 2015 disability onset date. In February 2008, Smith reported nightmares, headaches, and difficulty with sleep. Tr. at 1382. He continued to report chronic headaches as well as neck and back pain. Tr. at 1349. In September 2008, providers fitted Smith for a cane. Tr. at 715.
Dr. Martin Chipman performed a neurology consultation in April 2009. Tr. at 1315-16. Dr. Chipman noted that noise and light aggravated Smith's headaches. Tr. at 1315. Dr. Chipman assessed post-traumatic headaches and prescribed medications to Smith. Tr. at 1316.
A September 2010 MRI of Smith's knee showed tricompartmental degenerative joint disease with osteophytes. Tr. at 1114. Providers fitted Smith for an adjustable cane as well as a back brace for his lower back pain. Tr. at 684. Two months later, noting the progression of his right knee condition, providers assessed Smith with traumatic arthritis of the right knee. Tr. at 1126. The next month, Smith sought treatment for severe headaches as well as pain in his hips, knees, and lower back. Tr. at 1124.
The VA evaluated Smith's right knee in January 2011. Tr. at 1111-13. Smith was using a cane and knee braces as well as medications to treat his knee pain and weakness. Id. Smith reported that standing for more than a few minutes or walking more than a few yards exacerbated his pain. Id. Providers opined that Smith's right knee resulted in decreased strength and mobility and would cause him trouble with lifting and carrying. Id.
Throughout 2011 and 2012, Smith continued to seek treatment for his headaches. Tr. 339, 340-41, 641, 643. In November 2012, providers at Carolina Neurology examined Smith. Tr. at 340-41. Smith reported that he experienced headaches three times per week and also had chronic neck pain and lumbar radiculopathy. Id. Later that month, providers noted that Smith's neck pain suggested cervical radiculopathy, and they adjusted his medications. Tr. at 643.
In February 2013, Smith saw an orthopedist for his complaints of right knee pain that was worse with activity and better with rest. Tr. at 372. An examination revealed tenderness and an x-ray showed medial arthritis with multiple ACL revision surgeries. Tr. at 367-68. Two months later, providers performed right knee replacement surgery on Smith. Tr. at 398. Records note that Smith did well following the surgery. Tr. at 2540.
But Smith's knee problems continued. At an April 2014 examination, Dr. Robert Clinton noted pain and fatigue prevented Smith from extended walking. Tr. at 2533. Dr. Clinton remarked that Smith's history of knee surgeries caused episodes of joint locking, pain, and effusion. Tr. at 2539. He observed that Smith also had left ankle pain. Tr. at 2541. Dr. Clinton opined that Smith needed a cane and brace for his conditions. Tr. at 2540. He further found that Smith could not walk for extended periods. Tr. at 2541.
Dr. Clinton evaluated Smith's back condition, which included a history of surgery, decreased range of motion, and difficulty sitting for long periods. Tr. at 2550. Smith displayed pain with movement, radicular pain, and a positive straight leg raise on the right side. Tr. at 2552-53. Dr. Clinton noted the involvement of nerve roots at L2-L4. Tr. at 2554. Smith could not lift heavy objects. Tr. at 2556.
In evaluating Smith's headaches, Dr. Clinton noted his sensitivity to light and sound as well as vision changes. Tr. at 2567. When Smith was experiencing a headache, he could not work. Tr. at 2568.
The next month, Smith visited his primary care provider for right-sided facial pain as well as intermittent right elbow pain. Tr. at 920. Smith also reported knee, back, and foot pain. Tr. at 923. Imaging studies performed a few weeks later showed post-traumatic deformity with plate and screw fixation in the distal right humerus as well as a small intraarticular loose body. Tr. at 1617.
Smith continued to receive care for his physical and mental health conditions throughout 2015. In January 2015, Smith reported left sided foot pain and tingling. Tr. at 421-22. An examination noted tenderness to palpitation and sensory loss at L5-S1. Id. Smith also reported leg fatigue with exertion, lower back pain, and right knee pain. Tr. at 406-07, 1748, 1762. X-rays revealed a compression fracture at the L1 vertebral body with a 40% loss of height and early spur formation at L2-L3. Tr. at 2755.
Since his October 2015 disability onset date, Smith has continued to receive treatment at the VA for his headaches, mostly in the form of medication management. Tr. at 488. Records from January 2016 reflect that Smith was having trouble with activities of daily living and often needed assistance from his wife. Tr. at 484. The next month, Smith reported nightmares and difficulty sleeping. Tr. at 465. One month later, he claimed continued back and knee pain as well as poorly controlled diabetes mellitus. Tr. at 461, 465.
In March 2016, Smith displayed tenderness to palpitation in his left foot and bilateral L5-S1 sensory loss. Tr. at 415. Two months later, Smith reported he had helped move his son from college and experienced exacerbation of his lower back pain down his right leg. Tr. at 2014. He characterized the pain as moderate to severe and he had a slow gait. Id.
Four months later, Smith's wife remarked that she helped him "a lot" as his back and knee pain persisted. Tr. at 454, 1695. The next month, Smith reported that his PTSD led to intrusive thoughts, recurrent nightmares, flashbacks, irritability, hypervigilance, difficulty sleeping, and social isolation. Tr. at 435.
Dr. Antonio Carbonell performed a consultative examination in October 2016. Tr. at 1524-28. Smith complained of mood swings, easy aggravation, and outbursts. Id. He also had trouble staying focused. Id. Smith estimated that his mental health issues interfered with his functioning 90% of the day. Id. Dr. Carbonell noted Smith's history of TBI with migraines and his sensitivity to light and sound. Id.
Smith also reported back spasms, difficulty bending and lifting, and an inability to engage in prolonged sitting, standing, or walking. Id. Dr. Carbonell observed that Smith walked with a cane and wore bilateral knee braces. Id. Smith had tenderness, diminished straight leg raises, and reduced range of motion. Id. Smith could not squat or bend although he could sit, stand, and walk. Id.
Dr. Carbonell assessed Smith with PTSD, for which he had a guarded prognosis, right knee status post reconstruction with left knee arthropathy, spinal fusion with old compression fracture, TBI with migraines, and diabetes mellitus. Id. Dr. Carbonell found that Smith needed a cane at all times for walking, standing, and balancing. Tr. at 1528.
The next month, Dr. Ernest Akpaka performed a consultative psychological examination. Tr. at 1533-35. Although Smith's mood was irritable, he was cooperative. Id. On mental status examination, Smith was upset and displayed some memory difficulties. Id. Dr. Akpaka assessed him with PTSD and a depressive disorder. Id.
Dr. Akpaka opined that Smith could understand and follow simple instructions and perform simple, routine, repetitive tasks. Id. But Smith's mood symptoms would likely impede his ability to relate to others, tolerate the stress of everyday work, or perform tasks that required sustained concentration and persistence. Id.
In mental health follow-up treatment in 2017, providers noted Smith was doing fairly well, although he continued to get emotional over simple things and was troubled by his physical impairments. Tr. at 1975-76. And migraine headaches and joint pain continued to cause problems for Smith. Tr. at 1957.
In May 2017, Smith sought treatment at the VA for right shoulder pain, which was aggravated by rotation. Tr. at 1938-39. Imaging studies showed mild to moderate osteoarthritis of his acromioclavicular joint. Tr. at 1827.
Two months later, Dr. Justin Adams, Smith's VA pharmacist, issued an opinion of his functioning. Tr. at 1802-03. Because of Smith's many impairments, Dr. Adams opined that Smith could work for one hour per day, stand for 15 minutes at a time for 60 minutes per day, sit for 15 minutes at a time for 60 minutes per day, and perform no lifting or postural activities. Id. Dr. Adams also found that Smith needed to elevate his legs most of the time. Id. Dr. Adams noted that Smith's medications depressed his central nervous system and could impair his physical and mental abilities. Id.
Smith followed up with VA providers in September 2017 for his diabetes mellitus. Tr. at 1890-91. Smith reported he was trying to exercise two to three times per week, although he experienced fatigue and excessive sweating. Id. An cervical spine MRI showed multilevel posterior disc osteophyte complexes, most prominent at C5-C6, causing mild right foraminal narrowing at multiple levels. Tr. at 2126-27, 2150.
D. Veterans Affairs Disability Rating
Smith contends that ALJ Willis did not appropriately consider his VA service-connected disability rating. The Commissioner asserts that ALJ Willis properly explained why the VA disability finding warranted only partial weight in the disability analysis. The undersigned concludes that the record does not support ALJ Willis's explanation of why he granted less than substantial weight to this evidence.
As provided by 20 C.F.R. § 404.1504 and further explained in Social Security Ruling ("SSR") 06-03p, "a determination made by another agency that [the claimant is] disabled or blind is not binding on" the Social Security Administration. 20 C.F.R. § 404.1504. Rather, "the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner." SSR 06-03p.
The Fourth Circuit has addressed the value of disability findings by other agencies. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012). It noted that while not binding on the SSA, "another agency's disability determination 'cannot be ignored and must be considered.'" Bird, 699 F.3d at 343. The Fourth Circuit observed that often times the disability assessments of other agencies such as the VA serve the same governmental purpose of providing benefits to persons unable to work, evaluate a claimant's ability to perform full-time work, analyze a claimant's functional limitations, and require extensive medical documentation to support the claims. Bird, 699 F.3d at 343. The Fourth Circuit therefore concluded that "in making a disability determination, the SSA must give substantial weight to a VA disability rating[.]" Id. Assigning less weight to another governmental agency's disability determination may be warranted "when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.; see also Woods v. Berryhill, No. 1:16-CV-58-MOC-DLH, 2018 WL 1954475 (4th Cir. Apr. 26, 2018) (extending Bird's holding to state agency disability determinations).
ALJ Willis determined that the VA disability rating was entitled to partial weight. Tr. at 23. He observed that disability determinations by other agencies are not binding on the SSA and the two agencies use different criteria in making their disability determinations. Id. ALJ Willis remarked that VA disability determinations are not made by medical professionals and address a claimant's ability to perform military work which, he noted, was more strenuous than the work contemplated by an SSA disability assessment. Id. ALJ Willis also noted that there was additional evidence in the record that the VA did not have at the time of its disability decision. Id.
Smith contends that ALJ Willis's rationale in failing to assign substantial weight to the VA disability determination violates Bird and Woods. The undersigned finds that several of ALJ Willis's proffered reasons for assigning this evidence only partial weight fail to withstand scrutiny under Fourth Circuit case law.
Citing the different agency program inquiries and regulations is unpersuasive. That rationale put forth by ALJ Willis conflicts with the Bird holding. Mindful of the parallel purpose and inquiry of the VA and SSA programs, coupled with the substantial weight presumed due to the VA finding under Bird, such reason, without more, would support remand for further consideration of the VA disability determination(s). See Northern v. Colvin, No. 1:15-CV-445, 2016 WL 5956636, at *4 (M.D.N.C. Oct. 12, 2016) (remanding case in which ALJ gave VA disability determination limited weight, finding that ALJ "summarily dismissed" VA conclusion finding that claimant was 100% disabled "without either parsing that conclusion into its component findings or considering the rationale behind those findings."); Gannon v. Colvin, C/A No. 9:15-3250-RMG-BM, 2016 WL 5339698, at *6-7 (D.S.C. Aug. 22, 2016) (the ALJ's minimal discussion of the VA rating was insufficient to clearly demonstrate that a deviation from a finding of substantial weight was appropriate, and remanded matter for a more proper weighing under the methodology outlined in Bird), adopted by 2016 WL 5338504 (Sept. 21, 2016); Riggins v. Colvin, No. 0:15-2429-BHH-PJG, 2016 WL 4249509, at *4 (D.S.C. July 25, 2016) (remanding matter where the ALJ's limited reasons and discussion about the finding that the VA determination was entitled to little weight because court could not determine whether the conclusion was supported by substantial evidence).
ALJ Willis found that the VA disability opinions examine criteria for performing strenuous military work, not the average functional abilities of a civilian worker evaluated by the SSA. Tr. at 23. But several of Smith's past work positions in the military were classified by the VE as light or sedentary. Tr. at 24, 221. So this reason ALJ Willis offered to deviate from Bird's presumption appears unsound.
ALJ Willis remarked that VA disability ratings are not made by medical professionals. Tr. at 23. But although ALJs may rely on medical opinions, disability determinations under SSA programs are not rendered by medical professionals. So to criticize the fact that the VA's disability rating may be assigned by non-medical professionals is unpersuasive.
ALJ Willis also submits that the medical evidence on which the VA disability finding is based is unclear. The undersigned cannot agree. The VA disability findings make clear the evidence informing those determinations. Tr. at 295, 298, 304, 306-07, 314, 2897.
If a VA disability rating lacks the benefit of the longitudinal record before an ALJ, is based on limited information, or lacks vocational evidence, an ALJ should identify those deficiencies in the particular VA disability decision(s) with specificity, and address the materiality of any shortcomings to the ALJ's disability determination, rather than speak on the general nature or inadequacies of VA disability ratings.
Finally, ALJ Willis concluded that there was additional evidence before him that the VA disability finding did not include in its review. This reason would appear sound. And the Commissioner cites several instances after the VA disability finding where Smith had generally normal or only minimal findings upon examination and acknowledged engaging in exercise and sporting activities.
But ALJ Willis's determination does not cite these reasons in according the VA rating only partial weight. Instead, he stated that other evidence in the record was more persuasive, but failed to identify those more convincing findings. Thus, while the Commissioner's argument may be accurate, because the Commissioner bases his position on evidence which ALJ Willis did not cite, the undersigned declines his post hoc rationalization to sustain ALJ Willis's finding.
Given the reasons ALJ Willis cited lack support in the record or case law, the undersigned cannot find that substantial evidence supports his consideration of the VA disability finding and the weight he gave to it. If the only reason to depart from Bird's presumption of substantial weight is later-generated evidence, perhaps it is due more weight. This would seem to require an assessment of whether Smith's functioning improved, declined, or remained unchanged since the VA disability finding. But it is the ALJ's duty, not the court's, to weigh the evidence in the first instance.
In sum, the undersigned cannot find that ALJ Willis's articulated reasons to justify deviating from the VA disability finding have the support of substantial weight. Having established error in this issue, Smith's argument has merit and warrants remand.
E. Medical Opinion Evidence
Smith next contends that ALJ Willis erred in giving partial weight to the assessments of Drs. Clinton and Adams about Smith's need to use a cane. The Commissioner asserts that ALJ Willis's reasons for according less weight to these providers' opinions is supported by the record. The undersigned concludes that ALJ Willis's assessment of Dr. Clinton's opinions was flawed, but does not find similar error in the evaluation of Dr. Adams's findings.
"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 of 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 explain 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. Clinton
Smith first challenges ALJ Willis's consideration of Dr. Clinton's opinion, which he afforded partial weight. Dr. Clinton concluded that Smith needed to use a cane at all times, a finding ALJ Willis did not incorporate into the RFC. The VE testified that gainful employment was foreclosed if an individual with Smith's RFC also need to use a cane to stand, balance, and walk. So Smith argues that ALJ Willis's exclusion of an assistive device for walking and standing is prejudicial to his claim.
Dr. Clinton opined that Smith needed a cane and braces for his conditions. Tr. at 2540. He further found that Smith could not walk for extended periods or lift heavy objects. And when Smith suffered a migraine, he could not work.
In assigning partial weight to Dr. Clinton's assessment, ALJ Willis noted that his directive that Smith avoid strenuous activity, heavy lifting, or extended walking was vague. Tr. at 22. ALJ Willis also determined that Dr. Clinton did not express his evaluation of Smith's migraine headaches in functionally-relevant terms and appeared to be based on Smith subjective statements, as there was little objective evidence showing the severity of this condition. Finally, ALJ Willis remarked that Dr. Clinton made his opinions before Smith's disability onset date. Id.
The undersigned first notes that the lack of objective evidence on Smith's migraine headaches is not a persuasive basis to discount the condition or a provider's opinion on this condition. See Eden v. Berryhill, No. 2:16-CV-03703, 2017 WL 1404380, at *19 (S.D.W. Va. Mar. 28, 2017), adopted 2017 WL 1398341 (S.D.W. Va. Apr. 18, 2017) (noting that unlike many medical condition, migraines are not detectable in laboratory testing and thus a lack of objective evidence of migraines is not determinative); Harrington v. Colvin, No. 7:17-CV-00020-FL, 2016 WL 320144, at * 4 (E.D.N.C. Jan. 4, 2016) (lack of objective evidence merely suggests that cause of headaches cannot be identified through testing, not that claimant does not suffer headaches), adopted, 2018 WL 311284 (Jan. 25, 2016).
And the undersigned agrees with Smith that ALJ Willis's lack of discussion on Dr. Clinton's opinion about the use of a cane warrants remand. ALJ Willis's failure to address this specific limitation leaves the reviewing court unable to discern if this restriction was overlooked or rejected and, if it is the latter, his reasons for declining to adopt this limitation.
Other evidence in the record supports Dr. Clinton's opinion about Smith's use of a cane. As noted above, Smith has undergone several surgeries on his knee and back. The VA directed him to use a cane at least as far back as 2008. And Smith stated that he has consistently used a cane since 2014.
The opinions of both Drs. Carbonell and Adams, whose assessments fall within the relevant period, bolster Smith's need for a cane. Dr. Carbonell noted Smith's joint weakness, limited range of motion, and inability to stand or walk for long periods of time. He concluded that Smith needed a cane at all times. Similarly, Dr. Adams found that Smith had reduced exertional abilities.
The evidence could support an additional limitation to allow Smith use of an assistive device when standing and walking. So ALJ Willis's failure to specifically address his need for a cane, or the reasons he does not require one, renders the undersigned unable to determine whether substantial evidence supports ALJ Willis's determination. Because ALJ Willis's evaluation of Dr. Clinton's opinions is flawed, Smith's argument on this issue has merit and warrants additional consideration.
In the same vein, additional consideration of Dr. Carbonell's findings on Smith ability to sit, stand, and walk and his need for a cane is warranted.
2. Dr. Adams
Smith also contends that ALJ Willis erred in affording limited weight to Dr. Adams's July 2017 medical source statement. Dr. Adams found that Smith could work for one hour per day, stand for 15 minutes at a time for 60 minutes per day, sit for 15 minutes at a time for 60 minutes per day, and perform no lifting or postural activities. Id. Dr. Adams also found that Smith needed to elevate his legs most of the time. Id.
In evaluating this evidence, ALJ Willis remarked that Dr. Adams's assessment was quite limiting. Tr. at 22. Although Dr. Adams determined that Smith had visual and auditory restrictions, the record found normal or unremarkable visual and hearing examinations. Id. ALJ Willis also observed that Dr. Adams is a pharmacist, not a treating doctor, rendering his opinions on Smith's functional abilities less informative. Id.
ALJ Willis has articulated sound reasons to assign less weight to Dr. Adams's opinions. Thus, the undersigned cannot conclude that his consideration of this evidence is flawed. So the court should reject Smith's argument about this provider's opinions.
F. Headaches
Smith contends that ALJ Willis erred in his RFC determination by failing to account for his migraine and post-traumatic headaches, found to be a severe impairment at step two. The Commissioner argues that there is little evidence of Smith's headaches in the record during the relevant period. The undersigned finds no error in ALJ Willis's consideration of this impairment.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "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)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Social Security Ruling ("SSR") 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity "assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling further explains that the residual functional capacity "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)." Id.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. But "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-cv-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. 26 July 2010))).
At step two, ALJ Willis found that Smith's headaches were a severe impairment. Tr. at 14. But the RFC contains no accommodations addressing Smith's headache symptoms. Smith contends that this is error.
Smith points out that providers assessed him with migraine and post-traumatic headaches, Smith reported experiencing headaches several times per week, each lasting for several hours. When he experienced headaches, Smith had to lie down and avoid light and sound.
The record contains several instances commenting on Smith's headaches. Smith complained of headaches as early as 2008 and, later that year, providers noted he was experiencing chronic headaches. Smith sought a neurological consultation in April 2009 because his headaches had become more severe. Smith continued to complain of recurrent headaches in 2011 and 2012.
By November 2012, a neurologist remarked that Smith was experiencing intractable headaches two to three times per week. In April 2014, providers noted that Smith had headaches more than once a month. Because of the pain and his sensitivity to light and sound, Smith could not work when he had a migraine. Smith continued to take medication for his headaches through 2015. In October 2016, Dr. Carbonell noted that Smith experienced headaches every other day and they interfered with his activities of daily living. Dr. Carbonell believed Smith's prognosis was poor.
Despite this evidence, Smith argues that ALJ Willis only summarized the medical record and made no finding that his headaches would affect his functional abilities, such as avoidance of light or noise or time off-task. Smith also contends that this oversight is prejudicial because the VE testified that if he missed more than 1.5 days per month because of his headaches, competitive employment would be precluded.
The Commissioner maintains that Smith's headaches were more limiting before his onset date and, since October 2015, the record shows little evidence that this impairment presented significant symptoms. Tr. at 21. Nor does the record show that this condition worsened during the relevant period. Id. And ALJ Willis noted that Smith's headaches and other conditions did not prevent him from engaging in recreational activities. Id.
Aside from the assessments of Drs. Clinton, Carbonell, and Adams, Smith offers little evidence of his complaints of, or treatment for, headaches since his disability onset date. Although the record cites many references to Smith's headaches and the limiting symptoms that resulted from them, the evidence during the relevant period at issue before ALJ Willis contains few notations to this impairment or its treatment.
Smith's headaches may present more than a minimal effect on his ability to perform basic work activities, as would coincide with a finding of a severe impairment at step two. But that does not necessarily translate into a corresponding finding that the impairment is one that must be accommodated through a more-restrictive RFC with, for example, the avoidance of light or sound or allowance for other breaks or time off-task.
Given the lack of evidence the headaches presented limitations beyond those reflected in Smith's RFC during the period at issue, the undersigned cannot conclude that ALJ Willis failed to account for this impairment. So the court should reject Smith's argument on this issue as it lacks merit.
G. Conflict in Vocational Expert's Testimony
Smith also raises an argument that there was an apparent conflict between the VE's testimony and the document preparer job listing in the DOT. Despite this incongruity, ALJ Willis failed to elicit an explanation addressing the discrepancy. So, Smith contends, the step five finding of other work he can perform lacks the support of substantial evidence, providing another basis for remand.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved." SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). "Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT." Id. "When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled." Id. "At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency." Id.
Smith argues that the document preparer position (DOT. No. 249.587-018)—the only job identified at step five as suitable for Smith's RFC—has a Reasoning Level of 3. He contends that this work exceeds his abilities because his RFC limited him jobs that involving simple, routine, repetitive tasks in a low-stress work setting with no production-pace or quota-based work. Tr. at 18.
The DOT Reasoning Level functions are part of the General Educational Development ("GED"), which range from Level 1 (lowest reasoning ability) to Level 6 (highest reasoning ability). Reasoning level 1 involves "[a]pply[ing] commonsense understanding to carry out simple one- or two-step instructions." A reasoning level of 2 suggests that the job requires the person to be able to, "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Reasoning level 3 jobs require the ability to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations."
In support of this argument, Smith points to the recent Fourth Circuit decision in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), as amended (Feb. 22, 2019). In Thomas, the Court of Appeals found that an apparent conflict exists between an RFC limitation to "short, simple instructions" and a need to carry out "detailed but involved ... instructions" as found in jobs requiring a GED Reasoning Level of 2. Id. at 307, 313.
The exact RFC in Thomas differs from the one here, as does the reasoning level of the work identified at step five, but its holding applies. Other courts have split on whether on apparent conflict exists between a limitation for simple, routine, and repetitive tasks and an occupation that requires a Reasoning Level 3. Corvin v. Berryhill, No. 5:17-CV-92-RJC-DSC, 2018 WL 3738226, at *5 (W.D.N.C. Aug. 7, 2018) (limitation to simple, routine, repetitive tasks conflicts with the VE recommended reasoning level three occupation, but remand was not required because other jobs identified at step five had reasoning level two and presented no conflict with RFC); Solano v. Berryhill, No. 5:17-CV-203-MOC, 2018 WL 3242692, at *3 (M.D.N.C. July 3, 2018) ("Whether there is an apparent conflict between simple, routine, repetitive work and GED Level 3 is far from settled"); Taylor v. Berryhill, No. 1:17-CV-290, 2018 WL 2418560, at *4 (W.D.N.C. May 29, 2018) (recognizing split of authority about whether a conflict exists between simple, routine, repetitive tasks and reasoning level three jobs); Sanders v. Berryhill, No. 8:16-CV-03883-BHH-JDA, 2018 WL 878964, at *9 (D.S.C. Jan. 29, 2018) (observing that court within that district had remanded cases on whether a GED reasoning level of three conflicts with the ability to perform "simple, routine, repetitive tasks."); Halpern v. Colvin, Civ. No. TDC-14-2538, 2016 WL 429965, at *10 (D. Md. Feb. 4, 2016) (noting the apparent conflict between simple, repetitive tasks, and the demands of Level 3 reasoning). See also Meadows v. Berryhill, No. 4:17-CV-105-FL, 2018 WL 3596064, at *4 (E.D.N.C. July 3, 2018), adopted by 2018 WL 3594980 (July 26, 2018) (noting much disagreement within the federal courts about the issue suggests there is at least an apparent conflict).
So even if Thomas is distinguishable from the facts here, there is support for finding that a hypothetical question restricting one to simple, routine, repetitive tasks with no production-pace or quota-based work creates an apparent conflict with jobs the DOT classifies as reasoning level three. ALJ Willis needed to explain this conflict. Having failed to do so, his reliance on the VE's testimony about the availability of other work lacks the support of substantial evidence. Thus, remand is warranted and the district court should grant Smith's motion on this issue.
H. Appointments Clause
Smith raises a challenge to the appointment of the administrative law judge ("ALJ") who decided her claim because the ALJ was not appointed in compliance with the requirements of the Appointments Clause of the United States Constitution, and invokes as support the Supreme Court's recent decision in Lucia v. SEC, 585 U.S. —, 138 S. Ct. 2044 (2018). In Lucia, the Supreme Court found that the Securities and Exchange Commission's ALJs are inferior officers of the United States and must be properly appointed in accordance with the Appointments Clause. Lucia, 138 S. Ct. at 2049, 2051-54. The Court also held that "'one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case' is entitled to relief[.]" Id. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
The Commissioner does not appear to dispute the merits of Smith's Appointments Clause challenge, but only contests whether that claim has been "timely" raised. The Commissioner raises arguments identical to those presented in Bradshaw v. Berryhill, 372 F. Supp. 2d 349 (E.D.N.C. Mar. 26, 2019). In Bradshaw, the undersigned determined that there is no clear statutory, regulatory, or judicial authority requiring claimants to raise a constitutional issue before the Social Security Administration to preserve the matter for review in federal court. Because the circumstances here align with Bradshaw, thus rationale underlying the Bradshaw decision applies with equal force to this claim, and is incorporated in full.
So Smith's Appointments Clause challenge to ALJ Willis is a meritorious argument that warrants remand.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Smith's Motion for Judgment on the Pleadings (D.E. 61), deny Saul's Motion for Judgment on the Pleadings (D.E. 70), and remand the matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: July 16, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE