Opinion
No. 5:19-CV-340-D
06-04-2020
BROOKE STRICKLAND, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-12, -14] pursuant to Fed. R. Civ. P. 12(c). Claimant Brooke Strickland ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for Supplemental Security Income ("SSI") payments. Claimant responded to Defendant's motion, and the pending motions are ripe for adjudication. [DE-17]. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant filed an application for SSI on May 10, 2016, alleging disability beginning February 7, 1998. (R. 15, 171-80). Claimant later amended her alleged onset date to May 10, 2016. (R. 190). Her claim was denied initially and upon reconsideration. (R. 15, 73-101). A hearing before the Administrative Law Judge ("ALJ") was held on May 15, 2018, at which Claimant, represented by counsel; two witnesses; and a vocational expert ("VE") appeared and testified. (R. 15, 31-72). On September 5, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-30). On June 11, 2019, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant alleges the following errors: (1) the ALJ improperly weighed Claimant's testimony; (2) the ALJ erred in discounting the statement of Sandra Robbins, Claimant's mother; and (3) the ALJ failed to weigh the medical opinion of Dr. Stacey Ketchman and improperly weighed the medical opinion of Dr. Ernest Akpaka. Pl.'s Mem. [DE-13] at 7-26.
The court references the page number from the CM/ECF footer where it differs from the internal page number of Claimant's memorandum.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since May 10, 2016, the application date. (R. 17). Next, the ALJ determined Claimant had the following severe impairments: mitochondrial disorder/mitochondrial encephalopathy, speech dysarthria, scoliosis of the thoracolumbar spine, attention deficit/hyperactivity disorder ("ADHD"), and mild intellectual disability. Id. The ALJ also found Claimant had nonsevere impairments of Wolff-Parkinson-White syndrome, status post radiofrequency catheter ablation, and strabismus. (R. 17-18). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-20). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; concentrating, persisting, or maintaining pace; and adapting or managing oneself and a mild limitation in interacting with others. (R. 18-19).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform sedentary work requiring the following restrictions:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). "Occasionally" generally totals no more than about 2 hours of an 8-hour workday. "Sitting" generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
the claimant is capable of understanding, remembering, and carrying out short and simple instructions. The claimant has the ability to maintain attention and concentration as required for the completion of simple tasks at a non-production rate pace. The claimant has the ability to adapt to routine changes in a stable, low stress work setting.(R. 20-25). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence. (R. 21-22). At step four, the ALJ concluded Claimant has no past relevant work. (R. 25). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 25-26).
V. DISCUSSION
A. The ALJ erred in evaluating Claimant's testimony.
Claimant contends that the ALJ erred in determining that Claimant's statements were not entirely consistent with the medical and other evidence when formulating the RFC. Pl.'s Mem. [DE-13] at 7-15. An individual's RFC is the capacity she possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he 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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." S.S.R. 96-8p, 1996 WL 374184, at *7. 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)." Id.; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
When assessing a claimant's RFC, it is within the province of the ALJ to determine whether a claimant's statements are consistent with the medical and other evidence. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984) ("Because he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight.") (citation omitted). Federal regulation 20 C.F.R. § 416.929(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work," Craig, 76 F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D.N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D.N.C. Apr. 26, 2011).
The ALJ summarized Claimant's hearing testimony as follows:
[I]t was reported that the claimant's mitochondrial disease causes her to have general fatigue symptoms and to easily tire with exertion. It was also alleged that her scoliosis limits her ability to perform exertional activities. The claimant indicated that she is not currently taking medication for any of her impairments and is not receiving any ongoing treatment for her mitochondrial issues. The claimant also reported that her ADHD has interfered with her ability to maintain concentration but indicated that she no longer takes any medication for this impairment. She also indicated that despite her ADHD, she was able to graduate from high school in June 2017 earning mostly As and Bs and has been attending college 4 days a week from 8:00 am to 2:30 pm since the fall of 2017. Additionally, the claimant reported a history of special education courses in high school, but indicated that 70% of her classes in high school were regular classes. The claimant indicated that she is currently doing fairly well with her math and reading skills in college and that she does not have any significant problems learning new things. She also reported that she is able to get along well with other people as well as live with her parents and attend courses with at least 9 other people. The claimant further stated that she is able to follow directions fairly well and is planning on working after she finishes college.(R. 21). The ALJ concluded that Claimant's statements were not entirely consistent with the medical and other evidence for three reasons: first, despite Claimant's impairments, her physical and mental status examinations "have nevertheless generally been within acceptable limits with minimal treatment;" second, "more intensive treatment has not been recommended to the claimant;" and third, "despite her impairments, the claimant is still able to carry out numerous activities of daily living." (R. 22-23).
Claimant contends that each of the ALJ's reasons for discounting her testimony are baseless. Pl.'s Mem. [DE-13] at 8-14. The ALJ first states that Claimant's physical and mental examinations were within acceptable limits, despite her impairments. In support of that conclusion, the ALJ cites six examinations. The first two are records from December 2015 and May 2016 indicating that Claimant's prescriptions were refilled. (R. 393). She was noted to have no cardiology problems, but she was sad and anxious due to medication side effects, and she was diagnosed with ADHD and mitochondrial disease. Id. Next, the ALJ cites records from Claimant's December 2015 psychological examination. (R. 399-412). The examiner concluded that Claimant's General Intellectual Ability was 66, which is in the very low range; she has borderline knowledge of vocabulary and reasoning using word knowledge; her general knowledge is in the very low range; her problem solving ability is in the borderline range; and the general speed in which she is able to process information is in the very low range. (R. 403-05). The examiner also concluded that there is a 99.9% chance "that a significant attention problem exists while [Claimant is] on her Vyvanse medication." (R. 406). Claimant was diagnosed with ADHD and borderline intellectual functioning. (R. 411). The ALJ next cites a March 2016 examination in which Claimant's scoliosis was noted to be unchanged and stable. (R. 416). The ALJ also cites a June 2016 psychological evaluation in which Claimant was administered the Wechsler Adult Intelligence Scale and her overall performance was "classified in the intellectually deficient range and corresponds to a percentile rank of 2;" Claimant was found to have a Full Scale IQ of 68; and her academic skills were scored as "71 (4th grade) in Broad Reading, 55 (3rd grade) in Broad Mathematics, 59 (3rd grade) in Broad Written Language, and 60 (3rd grade) in Total Achievement." (R. 437-38). Lastly, the ALJ cites a September 2016 record from Carolina Pediatric Group in which it was noted that school was going well for Claimant, that she had medication at home, and that she would call when she needs more. (R. 450). In summary, the records cited by the ALJ do not appear to indicate that her physical and mental examinations were "within acceptable limits;" to the contrary, Claimant's psychological examinations indicate that Claimant has a General Intellectual Ability in the very low range, has attention problems even while on medication, has a percentile rank of 2 on the Wechsler Adult Intelligence Scale, and has 3rd grade academic skills. (R. 403-05, 438). The court cannot trace the ALJ's reasoning with respect to her first justification for discounting Claimant's testimony.
The ALJ's second rationale for discounting Claimant's testimony was that "more intensive treatment has not been recommended to the claimant, which also suggests that the claimant's current regiment has established at least some control over her symptoms through the use of less invasive modalities." (R. 23). Claimant testified that she was not currently taking medication or receiving ongoing treatment. (R. 21). However, the ALJ does not explain what "more intensive treatment" for mitochondrial disease might be consistent with Claimant's testimony. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("[A] designation of [Plaintiff's] course of treatment as 'conservative' amounts to improperly 'playing doctor' in contravention of the requirements of the applicable regulations")). The court cannot trace the ALJ's reasoning in concluding that Claimant's course of treatment was inconsistent with her testimony. See Tant v. Berryhill, No. 5:17-CV-274-D, 2018 WL 4039721, at *7 (E.D.N.C. Aug. 6, 2018) (finding error where " [t]he ALJ fails to provide an explanation of his finding that might otherwise dispel the appearance of his impermissibly playing doctor" ), adopted by 2018 WL 4035950 (E.D.N.C. Aug. 23, 2018). Accordingly, the ALJ's second reason for discounting Claimant's testimony is not viable.
The ALJ's third reason for discounting Claimant's testimony was that she can "carry out numerous activities of daily living" despite her impairments. (R. 23). However, the ALJ's reasoning was insufficient because she considered the type of activities Claimant can perform but did not consider the extent to which she is able to perform them. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (finding error when the ALJ stated that the claimant could "maintain her personal hygiene, cook, [and] perform light household chores" but did not consider the claimant's testimony that she has trouble dressing and bathing, she can only prepare simple meals, it takes her longer than normal to do laundry and shop, and she sometimes "spends the entire day on the couch"); Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017).
For example, the ALJ stated that Claimant attends college, but she did not consider that Claimant is in a non-degree program at a community college to improve her reading and math skills. (R. 23, 41). Claimant's mother testified that the program is a "special needs school here in Fayetteville at a community college" where Claimant learns basic life skills, cooking, math, reading, and current events. (R. 50). The ALJ also stated that Claimant can "handle her personal care, shop in stores, count change, use FaceTime, use a smartphone, perform household chores, [and] prepare simple meals." (R. 23). However, Claimant's mother testified that Claimant never acquired the ability to make her own lunch, can use the microwave but not the stove, does not know how to make a sandwich, requires reminders to shower and brush her hair, does not handle her own money, and has lost numerous telephones. (R. 50-53). Lastly, the ALJ stated that Claimant can play softball and interact with friends, but Claimant's mother testified that Claimant participates in buddy baseball with the help of a peer and Special Olympics softball and that she plays with neighborhood children ranging in age from six to twelve. (R. 23, 54). In summary, the ALJ considered the types of activities Claimant can perform, but she failed to consider the extent to which she can perform them. See Pemberton v. Berryhill, No. 7:18-CV-84-RJ, 2019 WL 2088055, at *5 (E.D.N.C. May 13, 2019). The court cannot trace the ALJ's reasoning with respect to her third reason to discount Claimant's testimony.
In summary, the ALJ's three stated reasons for concluding that Claimant's testimony was not fully consistent with the medical and other evidence are insufficient. Remand is appropriate for the ALJ to properly weigh Claimant's testimony or more thoroughly explain how Claimant's examinations were within acceptable limits, what more intensive treatment the ALJ expected to see in the record, and how the extent to which Claimant performs her activities of daily living are inconsistent with her alleged limitations.
B. The ALJ did not err in weighing Ms. Robbins's testimony.
Sandra Robbins, Claimant's mother, testified at the hearing and completed a Third Party Function Report. (R. 49-57, 209-16). Claimant contends that the ALJ erred in giving Ms. Robbins's statement partial weight. Pl.'s Mem. [DE-13] at 15-19.
Evidence provided by "spouses, other relatives, friends, employers, and neighbors" is properly considered by the ALJ as evidence from "other non-medical sources." S.S.R. 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006). "[T]he adjudicator generally should explain the weight given to opinions from these 'other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." Id. at *6. In weighing the evidence, "it would be appropriate to consider such factors as the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence." Id.
S.S.R. 06-03p was rescinded for claims filed after March 27, 2017. 82 Fed. Reg. 15263-01 (Mar. 27, 2017). However, Claimant filed her application on May 10, 2016, so S.S.R. 06-03p is still applicable to her case.
The ALJ summarized Ms. Robbins's testimony as follows: "the claimant's parents indicated that the claimant's history of learning problems as well as her ongoing fatigue symptoms have limited her ability to work and have interfered with her ability to perform certain exertional, postural, and manipulative maneuvers. They also indicated that the claimant's impairments have interfered with her ability to complete tasks, maintain concentration, and follow instructions." (R. 24). The ALJ gave partial weight to Ms. Robbins's statement because (1) it was not entirely consistent with the objective medical evidence; (2) Ms. Robbins does not have "the medical training necessary to make exacting observations as to dates, frequencies, types, and degrees of medical signs and symptoms or the frequency or intensity of unusual moods or mannerisms;" and (3) "by virtue of their relationships with the claimant," the ALJ could not consider her parents "to be disinterested third party witnesses whose statements would not tend to be colored by affection for the claimant and a natural tendency to agree with the symptoms and limitations the claimant alleges." Id.
First, the ALJ concluded that Ms. Robbins's statement was not entirely consistent with the objective medical evidence because "[t]he record reflects that the claimant's examinations have generally been within acceptable limits with minimal treatment." (R. 24). The ALJ cites the same examinations she cited in her discussion of whether Claimant's testimony was consistent with the medical and other evidence. Id. As discussed above, the records cited by the ALJ do not indicate that her examinations were "within acceptable limits;" to the contrary, they indicate that she has borderline intellectual functioning. Accordingly, the court cannot trace the ALJ's reasoning in concluding that Ms. Robbins's testimony was inconsistent with the medical and other evidence.
Nonetheless, the ALJ offered two other reasons for giving Ms. Robbins's testimony partial weight: she lacks medical training and is not a disinterested witness. (R. 24). Those reasons are both valid justifications to discount Ms. Robbins's statement. See S.S.R. 06-03p, 2006 WL 2329939, at *6 (noting that it is "appropriate to consider such factors as the nature and extent of the relationship" between the non-medical source and the claimant); 20 C.F.R. § 416.927(c)(2) (providing that medical opinions from treating sources are generally given more weight). The ALJ adequately explained the weight given to Ms. Robbins's testimony such that the court can follow the ALJ's reasoning in discounting the opinion. See S.S.R. 06-03p, 2006 WL 2329939, at *6. Accordingly, the ALJ did not err in weighing her statement.
C. The ALJ erred in weighing the medical opinions.
Claimant contends the ALJ failed to discuss or weigh the medical opinion of Dr. Ketchman and improperly weighed the opinion of Dr. Akpaka. Pl.'s Mem. [DE-13] at 19-26. When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 416.927(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence," it is given controlling weight. Id. However, "[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig, 76 F.3d at 590.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). However, "[a]n ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up 'specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion." Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).
1. Dr. Ketchman
On February 10, 2016, Dr. Ketchman completed a psychological evaluation of Claimant. (R. 399-412). She concluded, among other things, that Claimant's General Intelligence Ability falls in the very low range and that there is a 99.9% chance that Claimant has a significant attention problem while on her medication. (R. 404, 406). Dr. Ketchman diagnosed Claimant with ADHD and Borderline Intellectual Functioning. (R. 411). She also recommended continued medication management, special accommodations in school, various strategies for giving directions to Claimant, and participation in a social skills group. (R. 411-12). The ALJ summarized Dr. Ketchman's evaluation, (R. 22), and she cited it when concluding that Claimant's "mental status examinations have generally been within acceptable limits." (R. 23). However, the ALJ did not weigh or evaluate Dr. Ketchman's evaluation.
Defendant contends that the ALJ was not required to weigh the evaluation because it is not a medical opinion within the meaning of the regulations. Def.'s Mem. [DE-15] at 17. "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 416.927(a)(1). Defendant contends that Dr. Ketchman's evaluation is not a medical opinion because it is not a statement about what Claimant can still do despite her impairments. Def.'s Mem. [DE-15] at 17. Even if that were the case, Dr. Ketchman's evaluation does contain statements about the nature and severity of Claimant's impairments, her symptoms, and her diagnosis. (R. 399-412). Dr. Ketchman's interpretation of Claimant's performance on several tests contain statements about the nature, severity, and symptoms of Claimant's mental impairments, and Dr. Ketchman diagnosed Claimant with ADHD and Borderline Intellectual Functioning. Id. Accordingly, Dr. Ketchman's evaluation is a medical opinion within the meaning of the regulations, and remand is appropriate for the ALJ to evaluate it and explain its weight. See 20 C.F.R. § 416.927(c) (requiring the ALJ to evaluate every medical opinion received).
2. Dr. Akpaka
On June 15, 2016, Dr. Akpaka completed a psychological evaluation of Claimant. (R. 436-39). He administered the Wechsler Adult Intelligence Scale and concluded that Claimant has a Full Scale IQ of 68. (R. 437). Dr. Akpaka wrote, "her overall performance is classified in the intellectually deficient range and corresponds to [a] percentile rank of 2, indicating that she performed better than 2% of other 18-year-olds taking the test and worse than approximately 98%." Id. Dr. Akpaka also administered the Woodcock-Johnson Tests of Achievement to Claimant and noted that she scored at the third grade level in Total Achievement. (R. 438). Dr. Akpaka diagnosed Claimant with ADHD, a mild intellectual disability, and an academic problem. Id. He concluded, "Ms. Strickland is capable of understanding and following simple directions and performing simple repetitive tasks and routine but may often need instructions to be repeated. She is likely to be immature in social situations and have trouble completing schoolwork and other tasks in a timely manner due to her inattentive behavior and poor cognitive and adaptive behavior skills." (R. 438-39).
The ALJ summarized Dr. Akpaka's evaluation and gave it partial weight for three reasons: first, "his assessment is not entirely consistent with the overall record" and "the claimant's mental status examinations have generally been within acceptable limits with minimal treatment;" second, the assessment is not consistent with Claimant's activities of daily living, for "despite her impairments, the claimant is nevertheless able to perform numerous activities of daily living;" and third, "she has done relatively well in school." (R. 23).
The court cannot trace the ALJ's reasoning with respect to any of his three rationales for discounting Dr. Akpaka's opinion. First, in support of his conclusion that Dr. Akpaka's opinion is not consistent with Claimant's other mental status examinations, the ALJ cites Claimant's December 2015, May 2016, and September 2016 visits to Carolina Pediatric Group during which her prescriptions were refilled; Dr. Ketchman's evaluation, in which Dr. Ketchman concluded that Claimant has a General Intellectual Ability in the Very Low range and an attention problem even while on her medication, among other things; and Dr. Akpaka's evaluation itself. (R. 23). It is not clear how Dr. Akpaka's opinion is inconsistent with Claimant's Carolina Pediatric Group records, which were half-page check-box forms indicating Claimant's medication side effects, progress, medication refills, and next appointments. (R. 393, 450). Additionally, Dr. Akpaka's evaluation does not appear to be inconsistent with Dr. Ketchman's; both evaluators concluded that Claimant's intellectual and academic abilities were very low, and neither appear to be "within acceptable limits," as the ALJ concluded. (R. 399-412, 436-39). Finally, Dr. Akpaka's opinion is not inconsistent with itself. The court cannot trace the ALJ's reasoning in concluding that Dr. Akpaka's opinion is inconsistent with the overall record and that Claimant's "mental status examinations have generally been within acceptable limits." (R. 23).
Second, the ALJ stated that Dr. Akpaka's evaluation is not consistent with Claimant's activities of daily living. Id. As discussed above, the ALJ found that Claimant can "handle her personal care, shop in stores, count change, use FaceTime, use a smartphone, perform household chores, prepare simple meals, attend and progress in college, attend church, play softball, and interact with friends." Id. However, the ALJ did not consider the extent to which Claimant performs those activities. The record indicates that Claimant is in a non-degree, special needs program at a community college where she learns basic life skills, reading, math, and current events; she cannot make a sandwich or her own lunch; she can use a microwave but not the stove; she requires reminders to shower and brush her hair; she does not handle her own money; she has lost numerous telephones; she plays buddy baseball with the help of peers and Special Olympics softball; and her neighborhood friends range in age from six to twelve. (R. 23, 41, 50). Dr. Akpaka concluded that Claimant can understand and follow simple directions and perform simple repetitive tasks but may often need instructions to be repeated, is likely to be immature in social situations, and is likely to have trouble completing schoolwork and other tasks in a timely manner. (R. 438-39). Dr. Akpaka's opinion appears to be consistent with the extent to which Claimant can perform activities of daily living; in particular, the record indicates that Claimant can perform only simple cooking tasks, requires reminders to attend to her personal care, plays with neighborhood friends much younger than herself, and attends a special needs program at a community college. The court cannot trace the ALJ's reasoning in concluding that Dr. Akpaka's opinion is inconsistent with Claimant's reported activities of daily living.
Third, the ALJ concluded that Claimant has done relatively well in school. (R. 23). It is not clear how the record regarding Claimant's schooling is inconsistent with Dr. Akpaka's opinion. Claimant graduated high school with good grades, but she was in special education classes, and she is presently attending a special needs, non-degree program at a community college to learn basic life skills, reading, and math. Dr. Akpaka opined that Claimant would "have trouble completing schoolwork and other tasks in a timely manner due to her inattentive behavior and poor cognitive and adaptive behavior skills," and that opinion does not appear to be inconsistent with Claimant's academic history. Accordingly, the ALJ failed to build a logical bridge from the evidence to his reasons for discounting Dr. Akpaka's opinion, and on remand, the ALJ should more thoroughly explain the weight given to Dr. Akpaka's opinion.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-12] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-14] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until June 18, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. R 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 4th day of June, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge