Opinion
No. 7:18-CV-92-FL
07-22-2019
JAMAL A. YOUSEF, Plaintiff/Claimant, v. ANDREW M. 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-47, -54] pursuant to Fed. R. Civ. P. 12(c). Claimant Jamal A. Yousef ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefing has expired, and the pending motions are ripe for adjudication. 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 this matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on December 18, 2014, alleging disability beginning August 18, 2011. (R. 12, 208-11). His claim was denied initially and upon reconsideration. (R. 12, 72-117). A hearing before the Administrative Law Judge ("ALJ") was held on April 6, 2017, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 35-67). On August 18, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-32). Claimant requested review by the Appeals Council and submitted additional medical evidence. (R. 33-34, 204-07). The Appeals Council found the evidence did not show a reasonable probability that it would change the outcome of the decision, did not consider and exhibit the evidence, and denied Claimant's request for review on April 14, 2018. (R. 1-5). 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. § 404.1520 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. § 404.1520a(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): understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred by (1) failing to consider whether Claimant's conversion disorder met or equaled Listing 12.07, (2) failing to appropriately weigh the medical opinions, and (3) failing to include all of Claimant's non-exertional impairments in the RFC. Pl.'s Mem. [DE-48] at 24-32.
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 from the alleged onset date, August 18, 2011, through the date last insured, March 31, 2017. (R. 15). Next, the ALJ determined Claimant had the severe impairments of adjustment disorder, degenerative disc disease of the lumbar spine, right peroneal sensory neuropathy, and status post bilateral tarsal tunnel surgery. Id. The ALJ also found that Claimant did not have a medically determinable impairment with respect to a conversion disorder. Id. At step three, the ALJ concluded Claimant's 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. 15-17). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in mild limitations in understanding, remembering, or applying information and adapting or managing oneself, and moderate limitations in concentrating, persisting, and maintaining pace and interacting with others. (R. 16-17).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding he had the ability to perform light work with the following limitations: occasional postural activities except for no climbing of ladders and/or ropes, and frequent handling and/or fingering with the right hand; no more than occasional decision making or changes in the work setting; no quotas or fast-paced production work; no more than brief and incidental contact with the general public; and no tandem work or other work in close coordination with others in a team-type approach. (R. 17-25). At step four, the ALJ concluded Claimant was unable to perform any past relevant work. (R. 25). Nonetheless, 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).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §404.1567(b).
V. DISCUSSION
A. Conversion Disorder
Claimant contends the ALJ erred by failing to consider whether his conversion disorder meets or equals Listing 12.07. Pl.'s Mem. [DE-48] at 24-29. The Commissioner contends the ALJ did not have to consider Claimant's conversion disorder at step three because it was not found to be a medically determinable impairment at step two, and, in any event, Claimant failed to demonstrate the impairment meets or equals Listing 12.07. Def.'s Mem. [DE-55] at 6-10.
1. Step Two—Severity
The court begins at step two because the Commissioner contends the ALJ's determination that Claimant's conversion disorder was not a medically determinable impairment is dispositive at step three, such that the ALJ was not required to consider whether Claimant's conversion disorder meets or equals Listing 12.07. Id.
An impairment is "medically determinable" if it "result[s] from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1521. "[A] physical or mental impairment must be established by objective medical evidence from an acceptable medical source," and an individual's "statement of symptoms, a diagnosis, or a medical opinion" are insufficient to establish the existence of an impairment. Id. A medically determinable impairment is "severe" if it "significantly limit[s] [an individual's] physical or mental ability to do basic work activities." Id. § 404.1522. Examples of "basic work activities" are walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. Id.
Conversion disorder, also known as functional neurological symptom disorder, is "a psychiatric disorder, but it manifests in physical symptoms that cannot be controlled by the patient and that tend to affect movement or senses." Williams Tello v. Comm'r, Soc. Sec. Admin., No. CIV. SAG-14-2597, 2015 WL 1471973, at *2 (D. Md. Mar. 30, 2015). The ALJ determined Claimant's conversion disorder was not a medically determinable impairment and, alternatively, that it was not a severe impairment, explaining his reasoning as follows:
The undersigned is aware that the claimant's primary care provider listed a conversion disorder as a diagnosis, as did the physician's assistant and medical assistant from Physician Alliance for Mental Health (in questionnaires apparently provided to them by the claimant's legal representative (see Exhibits B28F and B30F)). However, Dr. Pistone reported in May 2013 that it did not look like the claimant had a conversion disorder (Exhibit B9F, page 5) and progress notes from Physician Alliance for Mental Health routinely listed it as a rule out diagnosis (for example, see Exhibit B30F, page 8). Therefore, the undersigned has allowed greater weight to the mental health providers (including an M.D.) in finding that the claimant does not have a medically determinable impairment with respect to a conversion disorder. To the extent that a conversion disorder may be a medically determinable impairment, the undersigned finds that the impairment is not severe.(R. 15). The ALJ's determination is not supported by substantial evidence because it is based on a misreading of the record and fails to consider material, contrary evidence favorable to the Claimant.
On May 1, 2013, Dr. Pistone conducted a consultative psychological examination of Claimant. (R. 580-83). Dr. Pistone noted Claimant presented with a right-side facial droop that did not appear faked, and he did not feel Claimant was malingering. (R. 580, 582). Dr. Pistone's diagnostic impression was "the whole [history] resembles strongly a Factitious [disorder with] predominant physical problems," Dr. Pistone found no mood disorder, and he also indicated Claimant's impairment "doesn't appear like conversion [disorder] but would like to [discuss with] Dr. DeMaria before I rule it out." (R. 583). Dr. Pistone's treatment plan and recommendation was to discuss Claimant's case with his other physicians, consider psychiatric testing and interviewing Claimant's wife, consider psychotherapy, and reconsider the indication for Paxil. Id. There are no follow-up treatment records from Dr. Pistone, and his diagnostic impression was not definitive and incomplete.
However, several mental health providers, including psychiatric doctors, subsequently diagnosed and treated Claimant for conversion disorder. On May 31, 2013, Claimant presented to the emergency department as a "stroke alert" with reports of right-sided weakness and abnormal facial asymmetry. (R. 635). Claimant's examination was not consistent with stroke and his brain scan was normal. (R. 638). Dr. Stelmach performed a psychiatric consultation and assessed Claimant with conversion disorder, as well as adjustment disorder with mixed emotional features, depression not otherwise specified, anxiety disorder not otherwise specified, pain disorder, and rule out undifferentiated somatoform disorder. (R. 643-45). On June 11, 2013, at an initial psychiatric assessment with RHA Health Services, Dr. Graham listed Claimant's diagnoses as conversion disorder, psychosis not otherwise specified, and rule out factitious disorder. (R. 668-71). Dr. Graham continued to treat Claimant and repeated those diagnoses in July and August. (R. 664-67). In an October 29, 2013 psychiatric progress note, Dr. Graham did not include a diagnosis for rule out factitious disorder and circled her diagnosis of conversion disorder. (R. 663). In December 2013, Dr. Graham again diagnosed Claimant with conversion disorder, rule out factitious traits, and added a diagnosis of depression. (R. 716-17). In February 2014, Dr. Graham noted Claimant's diagnoses only as conversion disorder and depression not otherwise specified. (R. 714-15). The ALJ did not mention Dr. Stelmach's or Dr. Graham's diagnoses, which counter the preliminary observations of Dr. Pistone. This omission is significant because Drs. Stelmach and Graham were both doctors specializing in mental health treatment, and Dr. Graham treated Claimant for several months while Dr. Pistone was a one-time examiner. See 20 C.F.R. § 404.1527(c)(2) (explaining that 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).
In March 2015, Claimant received a psychiatric evaluation from Dr. Fritzsche at Physician Alliance for Mental Health; he was diagnosed with adjustment disorder with mood and anxiety, rule out conversion disorder, rule out somatic disorder with predominant pain, and rule out unspecified psychotic disorder; and he was continued on medication and therapy. (R. 845-86). In April 2015, Claimant saw Dr. Fritzsche for medication management. (R. 842-44). Dr. Fritzsche subsequently moved out of state, and Claimant continued treatment at Alliance with Melissa Rice, a physician's assistant. Ms. Rice saw Claimant in June, July, August, October, and December 2015 and in February and March 2016. (R. 957-79). Each treatment note in the "subjective" section stated that Claimant was diagnosed with adjustment disorder with mood and anxiety, rule out conversion disorder, rule out somatic disorder with predominant pain, and rule out unspecified psychotic disorder. (R. 957, 960, 963, 968, 971, 974, 977). In the same section it also repeatedly says that Claimant was last seen on June 4, 2015, even though that would only be accurate for the July 2015 treatment note. (R. 957, 960, 963, 968, 971, 974). The "client diagnosis" section of the treatment notes, however, does contain a primary diagnosis of conversion disorder with mixed symptom presentation, effective October 29, 2015. (R. 958-59, 961, 966); see also (R. 1044, 1050, 1056) (repeating Claimant's conversion disorder diagnosis in May, June, and August 2016). Accordingly, it appears the subjective section of the treatment record may not have been updated with each visit, and the ALJ did not consider the complete record containing Claimant's updated diagnosis of conversion disorder with mixed symptom presentation. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (citation omitted).
In summary, the reason given by the ALJ for finding Claimant's conversion disorder not to be a medically determinable impairment is not supported by the record. Specifically, the ALJ said he allowed greater weight to the mental health providers, namely Dr. Pistone and Ms. Rice. However, the ALJ did not consider relevant, contrary evidence from other mental health providers and appears to have misread Ms. Rice's treatment notes. The ALJ's alternative finding that Claimant's conversion disorder is not severe is devoid of reasoning, and there is ample evidence in the record, discussed further below, that could support a contrary finding. Finally, the ALJ's error was not harmless because the ALJ did not adequately consider Claimant's conversion disorder at step three or in the RFC discussion. Accordingly, the ALJ's error at step two requires remand for further consideration of Claimant's conversion disorder.
2. Step Three - Listing 12.07, Somatic Symptom and Related Disorders
Claimant contends his conversion disorder meets or equals the A. 1 and B criteria of Listing 12.07. Pl.'s Mem. [DE-48] 25-29. The Commissioner concedes the ALJ did not consider Listing 12.07 but argues that the ALJ did consider the identical B criteria with respect to other listings and appropriately determined they were not met. Def.'s Mem. [DE-55] at 8.
To show disability under the listings, a claimant may present evidence either that the impairment meets or medically equals a listed impairment. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986); 20 C.F.R. §§ 404.1525, 404.1526. Disability is conclusively established if a claimant's impairments meet all the criteria of a listing or are medically equivalent to a listing. 20 C.F.R. §§ 404.1520(d), 404.1525(c)(3); S.S.R. 17-2p, 2017 WL 3928306, at *2 (Mar. 27, 2017). In order to determine whether a medical impairment equals a listing, the ALJ is bound to " consider all evidence in [claimant's] case record about [an] impairment(s) and its effects on [claimant] that is relevant to this finding. . . . [The ALJ] also consider[s] the opinion given by one or more medical or psychological consultants designated by the Commissioner." 20 C.F.R. § 404.1526(c). " For a claimant to qualify for benefits by showing that his . . . combination of impairments[] is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (citation omitted).
The Fourth Circuit has found error where there is evidence in the record that would support a finding that a claimant's impairments meet a listing but the ALJ fails to provide a full explanation in support of a contrary determination. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (concluding the ALJ's "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings") (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). Where there are inconsistencies in the record and the ALJ fails to conduct the requisite analysis, the court cannot conduct a meaningful review. See Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015) (remanding where the ALJ failed to explain the claimant's failure to meet a listing and there was contradictory evidence in the record) (citing Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); Radford, 734 F.3d at 296). Thus, the court must consider whether there is evidence in the record regarding the listing that could support a finding favorable to Claimant.
Conversion disorder is evaluated under Listing 12.07, somatic symptom and related disorders. 20 C.F.R. § 404, subpt. P, app. 1, § 12.00B.6.b. To meet Listing 12.07 the claimant must demonstrate that an impairment satisfies two sets of criteria:
A. Medical documentation of one or more of the following:
1. Symptoms of altered voluntary motor or sensory function that are not better explained by another medical or mental disorder;
2. One or more somatic symptoms that are distressing, with excessive thoughts, feelings, or behaviors related to the symptoms; or
3. Preoccupation with having or acquiring a serious illness without significant symptoms present.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
Id. § 12.07.1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
The ALJ found that Claimant's mental impairments had resulted in mild limitations in understanding, remembering, or applying information and adapting or managing oneself, and moderate limitations in concentrating, persisting, and maintaining pace and interacting with others. (R. 16-17). However, in evaluating the B criteria the ALJ did not consider the limitations caused by Claimant's conversion disorder, which may affect the ALJ's ultimate determination. See 20 C.F.R. § 404, subpt. P, app. 1, § 12.00F.1 (explaining that "limitations that result from [an individual's] mental disorder(s)" are considered in rating degree of limitation using the B criteria).
For example, in evaluating Claimant's ability to adapt or manage oneself, the ALJ found Claimant had mild limitations. (R. 17). The ALJ explained that although Claimant described "significant difficulties relative to his performance of activities of daily living," they were attributed "primarily to his physical ailments." Id. The ALJ's reasoning fails to account for the fact that the effects of conversion disorder are largely physical in nature. See 20 C.F.R. § 404, subpt. P, app. 1, § 12.00B.6.a. (explaining that somatic disorders, including conversion disorder, are "characterized by physical symptoms or deficits" with symptoms that may include, but are not limited to, abnormal motor movement and pseudoneurological symptoms).
In Williams Tello, the court rejected the Commissioner's argument that a failure to consider a Claimant's conversion disorder was harmless because the ALJ considered her other mental impairments. 2015 WL 1471973, at *2. The Williams Tello court reasoned that
conversion disorder, by its nature, results more in physical limitations than mental limitations. Thus, simply considering the impact of Ms. Williams Tello's mental status on her activities of daily living, social functioning, and concentration, persistence, and pace does not address, for example, the effect of her repeated episodes of syncope and paralysis on her ability to perform sustained work requiring physical exertion.Id. Similarly, here, the ALJ failed to consider the effects of Claimant's conversion disorder, which include stroke-like neurological symptoms, on the four functional areas. There are also opinions from Claimant's treatment providers and voluminous treatment notes documenting his symptoms in the record suggesting Claimant's conversion disorder results in marked or extreme mental limitations with respect to his ability to interact with others; concentrate, persist, or maintain pace; and adapt and manage himself. (R. 949-51, 953-55, 1005-09). It is not apparent whether the ALJ considered those opinions and corresponding treatment records in evaluating the paragraph B criteria. 20 C.F.R. § 404, subpt. P, app. 1, § 12.00F.3 (explaining that all relevant medical and non-medical evidence in the record is used in evaluating a mental disorder, which "may include descriptors regarding the diagnostic stage or level of your disorder, such as 'mild' or 'moderate.'"). Accordingly, the ALJ's analysis of the paragraph B criteria without consideration of the limitations caused by Claimant's conversion disorder is insufficient because there is evidence in the record that could support a finding the B criteria are satisfied, and remand is required for the ALJ to consider whether Claimant's conversion disorder meets or equals Listing 12.07.
The Commissioner does not address the A.1 criteria, Def.'s Mem. [DE-55] at 8-10, and the "depth and ambivalence of the medical record" requires the ALJ to consider in the first instance whether those criteria are met. Radford, 734 F.3d at 296. For example, Claimant points to symptoms documented by his neurologist, Dr. DeMaria; his primary care provider, Dr. Warhaftig; and emergency department doctors, including tremors occurring in his arms and legs, stroke-like symptoms, wrist pain and numbness, fingers locked in place, weakness, speech problems, facial drooping, and curling of toes. Pl.'s Mem. [DE-48] at 25-26 (citing R. 612, 638, 653, 830-34, 881, 916-17, 983-84, 1023). Claimant's treatment providers consistently indicated these and other symptoms were caused by Claimant's conversion disorder rather than another medical or mental disorder. See, e.g., (R. 499-500, 614, 598-600, 605-07, 611-13, 635, 638, 658-60, 668-71, 691-96, 714-15, 722-25, 737-38, 775-79, 796-99, 959, 961, 966, 1044, 1050, 1056). In Radford, the Fourth Circuit explained that "[a] full explanation by the ALJ is particularly important . . . [when the] medical record includes a fair amount of evidence supportive of [the plaintiff's] claim." 734 F.3d at 295 (citation omitted).
3. RFC Discussion
Claimant contends the ALJ failed to account for limitations from Claimant's conversion disorder in the RFC and failed to properly weigh the opinion evidence. Pl.'s Mem. [DE-48] at 29-32. The Commissioner counters that the ALJ properly evaluated Claimant's RFC and the medical opinion evidence. Def.'s Mem. [DE-55] at 10-14.
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at * 1 (July 2, 1996). 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. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted).
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source the ALJ must evaluate every medical opinion received. Id. § 404.1527(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. § 404.1527(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. § 404.1527(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).
The rules for evaluating opinion evidence for claims filed after March 27, 2017 are found in 20 C.F.R. § 404.1520c, but 20 C.F.R. § 404.1527 still applies in this case.
The ALJ's RFC discussion demonstrates a lack of understanding regarding the mental impairment of conversion disorder. In discussing Claimant's "somatoform-type complaints" the ALJ cites what he refers to as "an October 2013 emergency room note" indicating Claimant presented with complaints of loss of motion and sensation, muscle weakness, and numbness and tingling to his right foot, knee and thigh, but also that his physical examination was unremarkable, his neurological examination was inconsistent, and motor exam of his hand was visually normal. (R. 21, 652). The ALJ's focus on the lack of objective medical findings, including inconsistent neurological examinations and testing, is misplaced because conversion disorder is "characterized by physical symptoms or deficits that . . . following clinical investigation, cannot be fully explained by a general medical condition . . . ." 20 C.F.R. § 404, subpt. P, app. 1, § 12.00B.6.a.
It appears the ALJ was actually referring to a July 24, 2013 treatment note from Dr. Warhaftig, which the ALJ otherwise accurately described as to content. (R. 652). That treatment note is preceded in the record by a documented May 31, 2013 emergency department visit where Claimant presented as a "stroke alert" with reports of right-sided weakness and abnormal facial asymmetry. (R. 635). Claimant's examination was not consistent with stroke; his brain scan was normal; and, after discussing the case with Dr. Warhaftig, the emergency room doctor concluded Claimant was experiencing conversion disorder and placed him on involuntary commitment pending psychiatric review. (R. 638). The neurologist concurred that Claimant's symptoms were functional. (R. 642). Dr. Stelmach performed a psychiatric consultation and assessed Claimant with conversion disorder, as well as adjustment disorder with mixed emotional Features, depression NOS, anxiety disorder NOS, pain disorder, and rule out undifferentiated somatoform disorder. (R. 643-45). --------
In the case of Jackson-Farnsworth v. Colvin, No. CIV.A. 12-2516-JWL, 2014 WL 1260122, at *9 (D. Kan. Mar. 27, 2014), the court found error where the ALJ focused on the fact that medical testing did not support the symptoms alleged by the plaintiff when assessing the impairment of conversion disorder. 2014 WL 1260122, at *9 ("The real question is whether the symptoms, or the severity or intensity of the symptoms are intentional or under voluntary control," which may indicate a factitious disorder or malingering rather than conversion disorder.). The court explained that the lack of objective evidence was "unremarkable" because "the physical symptoms in a conversion disorder admittedly are not confirmed by objective medical evidence and cannot be fully explained by a general medical condition . . . ." Id. (citation omitted). The court concluded that "[i]t is mostly irrelevant in a case such as this that the objective medical evidence does not support Plaintiff's symptoms." Id.; see also Swenson v. Berryhill, No. 4:17-CV-4067-KES, 2018 WL 4334073, at *18 (D.S.D. Feb. 15, 2018) ("By relying on 'normal' medical findings to debunk Ms. Swenson's description of her pain and functional limitations and formulate her mental RFC, the ALJ completely misconstrued the nature of her mental diagnoses. The absence of clinical findings to support the claimed symptoms are a key requirement of the diagnoses of somatic symptom disorder or conversion disorder."), adopted as modified sub nom. by Christi S. v. Berryhill, 2018 WL 3586277 (D.S.D. July 26, 2018).
As another example, in dismissing Claimant's documented tremors, the ALJ cited Dr. DeMaria's note that the tremors disappeared when Claimant was distracted. (R. 21). However, the DSM-V explains that "a unilateral tremor may be identified as functional if the tremor changes when the individual is distracted away from it." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders ("DSM"), 319 (5th ed. 2013). Dr. DeMaria's finding could be construed as supportive of a diagnosis of conversion disorder rather than an indication that Claimant's symptoms are not limiting because they are inconsistent with the medical evidence. The ALJ also cited negative nerve conduction studies, a lack of neurological findings, and a "minimally abnormal" electromyography when Claimant was evaluated for right leg pain, hypersensitivity, and weakness. (R. 19). The DSM-IV-TR explains that "[c]onversion symptoms are often inconsistent" and gives the example of a "paralyzed" extremity that will move inadvertently when attention is directed elsewhere, will demonstrate normal strength and muscle tone and intact reflexes, and will result in a normal electromyogram. DSM, 493 (4th. ed. text rev. 2000). Therefore, it is not apparent that the ALJ considered the nature of conversion disorder when formulating the RFC.
The ALJ's consideration of the opinion evidence is likewise flawed. On December 3, 2015, Ms. Rice, a mental health treatment provider, completed a form that stated Claimant's diagnosis as conversion disorder with mixed symptom presentation. (R. 953). On December 10, 2015, Anne Witted, MA, LPC, LCAS-A, another of Claimant's mental health providers, completed a form stating Claimant's diagnosis as conversion disorder with mixed symptom presentation. (R. 949). Both opined that Claimant experienced marked restrictions in his activities of daily living and social functioning; deficiencies in concentration, persistence, or pace resulting in frequent failure to timely complete tasks; and repeated episodes of deterioration or decompensation in work settings. (R. 949, 953). Ms. Whitted explained that her opinion was based on her therapy sessions and documented evidence regarding Claimant's diagnosis and inability to function in multiple life domains in including occupational. (R. 949-51).
On December 5, 2016, Mr. Holland, another mental health treatment provider, completed a form stating Claimant was diagnosed with conversion disorder, and he experienced marked restrictions in his activities of daily living and social functioning; deficiencies in concentration, persistence, or pace resulting in frequent failure to timely complete tasks; and repeated episodes of deterioration or decompensation in work settings. (R. 1006-08). On November 2, 2016, Dr. Warhaftig, Claimant's primary care provider, completed a form stating Claimant was diagnosed with conversion disorder, he experienced extreme restrictions in his activities of daily living and social functioning, and he was extremely impaired in several functional areas. (R. 1005). Dr. Warhaftig indicated he treated Claimant for over ten years, Claimant's condition became "worse and worse" over the last three to four years, and Claimant's condition limited his ability to function in any job. Id. On January 13, 2017, Dr. DeMaria, Claimant's neurologist, saw Claimant related to tremors, i.e., constant leg movement, and noted Claimant's speech was "very garbled" and he was barely understandable. (R. 1014-16). Dr. DeMaria started Claimant on Topamax and opined that Claimant was permanently neurologically unable to work. (R. 1009, 1016). There are voluminous treatment notes from these providers in the records that arguably support their opinions. See, e.g., (R. 499-500, 502-11, 514, 598-600, 605-07, 611-13, 635-45, 646-49, 658-60, 663-71, 691-96, 709-12, 714-17, 722-25, 737-38, 775-79, 823-29, 845-46, 881, 884, 891, 957-79, 981-1004, 1018-65, 1068-70, 1075-78, 1093-98, 1129-70).
The ALJ discounted the opinions of Claimant's long-time primary care physician, neurologist, and mental health providers in large part because their opinions were not consistent with the other medical evidence of record, which was presumably the normal examination findings and test results in the treatment records. (R. 22-23). As explained above, these normal findings are not inconsistent with a conversion disorder. The ALJ also noted Claimant's relatively normal mental status examinations in discounting Dr. Warhaftig's opinion. Id. However, conversion disorder results in largely physical neurological symptoms, but can result in hallucinations, DSM-IV-TR, 493, which the ALJ noted that Claimant experienced (R. 22). Thus, the ALJ's reasons for the weight assigned to these treating source opinions are not supported by the record. See Harrison v. Berryhill, No. 4:16-CV-227-FL, 2017 WL 3669630, at *3 (E.D.N.C. Aug. 7, 2017) (concluding the ALJ "must give good reasons for the weight assigned to a treating source's opinion" (citations and internal quotation marks omitted)), adopted by 2017 WL 3669515 (Aug. 24, 2017). The ALJ also gave significant weight to the opinions of the non-examining state agency psychologists but did not explain why. (R. 23); see Radford, 734 F.3d at 295-95 (noting the ALJ's failure to explain why the state medical opinions merited high evidentiary weight and explaining that the rejection of treating physician's opinions in favor of non-examining state medical opinions without sufficient explanation "raises red flags because the state medical opinions are issued by non-examining physicians and are typically afforded less weight than those by examining and treating physicians." (citing 20 C.F.R. § 404.1527(c)). Accordingly, it is recommended the case be remanded for further consideration of the opinion evidence.
VI. CONCLUSION
For the reasons stated above, it is recommended that Claimant's Motion for Judgment on the Pleadings [DE-47] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE- 54] be DENIED, and this matter be remanded to the Commissioner for further proceedings.
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 August 5, 2019 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. P. 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 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 22nd day of July, 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge