JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Melvin Kimble ("plaintiff," "Kimble," or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew Saul ("Commissioner") denying his applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that he is not disabled.
Plaintiff filed an application for DIB and an application for SSI on 22 May 2014, alleging a disability onset date of 26 September 2012 in both. Transcript of Proceedings ("Tr.") 16. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 16; 174-75. On 17 January 2017, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 16; 32-72. The ALJ issued a decision denying plaintiff's claims on 26 June 2017. Tr. 16-26.
Plaintiff timely requested review by the Appeals Council. Tr. 225. On 10 April 2018, the Appeals Council denied the request. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 8 June 2018, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See Compl. (D.E. 1).
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
Plaintiff was 43 years old on the alleged disability onset date, and 47 years old on the date of the hearing and issuance of the ALJ's decision. See, e.g., 37. Plaintiff testified that he received a master's degree. Tr. 37. The ALJ found that he has past relevant work as a warehouse supervisor, computer programmer, counselor, and project manager. Tr. 26 ¶ 6.
Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 19 ¶ 2. At step two, the ALJ found that plaintiff had the following severe medically determinable impairments: degenerative disc disease and osteoarthritis. Tr. 19 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 20-21 ¶ 4.
The ALJ determined that plaintiff had the RFC to perform a limited range of "light work":
Tr. 21 ¶ 5.
Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was capable of performing his past relevant work as a counselor, programmer, project manager, and warehouse supervisor as generally performed. Tr. 25-26 ¶ 6. The ALJ therefore concluded that plaintiff was not disabled from the alleged disability onset date, 26 September 2012, through the date of his decision, 26 June 2017. Tr. 26 ¶ 7.
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Plaintiff contends that this case should be remanded for further administrative proceedings on the grounds that the ALJ erred in: evaluating plaintiff's own descriptions of his impairments, that is, his symptoms; purportedly failing to evaluate plaintiff's alleged headaches and chronic fatigue syndrome; not accounting in the hypothetical to the vocational expert and in the RFC for the mild limitation in interacting with others the ALJ found plaintiff to have; evaluating the opinions of vocational therapist Thomas R. Gilbert, CSCS, CWCE, based on his functional capacity evaluation of plaintiff; and evaluating the opinions of consulting psychologist Ashley King, Ph.D.
"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. Admin., 600 F.Supp.2d 740, 752 (N.D.W. 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.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded 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, 76 F.3d at 590; Ward v. Chater, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, including the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, and any specialization of the opining source. 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." Soc. Sec. Ruling 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. 6 Mar. 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.").
The same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (21 Apr. 2015); Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to the opinions of an examining source than to the opinions of a nonexamining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining 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 nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 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 the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. §§ 404.1527(d), 416.927(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 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 is required to 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.").
On 23 July 2014, Dr. King, a licensed psychologist, performed a comprehensive clinical psychological evaluation of plaintiff for the Disability Determination Services.
Tr. 340-41.
Dr. King diagnosed plaintiff with adjustment disorder with depressed mood, identifying it as code 309 in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed. (Amer. Psychiatric Ass'n 2013)). Tr. 341. In the concluding section of her report, entitled "Prognosis, Discussion, and Recommendations," Dr. King stated:
Tr. 341 (emphasis added).
The ALJ gave "great weight" to Dr. King's opinions. Tr. 25 ¶ 5. He explained this determination as follows:
Tr. 25 ¶ 5.
As can be seen, the ALJ attributes great weight to Dr. King's opinions collectively, referring to them in the singular as her "opinion." Tr. 25 ¶ 5, He expressly excludes none. The plain meaning of the ALJ's language therefore is that he is attributing great weight to all of Dr. King's opinions. They include, of course, her opinion that plaintiff's "comprehension, emotions, and understanding are adequate to repetitive, simple tasks." Tr. 341. It appears to be undisputed, and appropriately so, that this opinion is a statement of plaintiff's maximum capacity, rather than a statement of some intermediate level of capacity.
Plaintiff contends that the ALJ's attribution of great weight to Dr. King's opinion that plaintiff was limited to repetitive, simple tasks is inconsistent with his subsequent determination that plaintiff can perform his past relevant work because such work requires the capacity for tasks more complex than repetitive, simple tasks. The court agrees that the ALJ failed to adequately explain his handling of Dr. King's opinion that plaintiff could perform repetitive, simple tasks.
The limitation to repetitive, simple tasks equates to work at a reasoning development level ("RDL") of no greater than 3 under the DOT. See generally Webb v. Berryhill, No. 1:17CV341, 2018 WL 2198829, at *7-8 (M.D.N.C. 14 May 2018), rep. & recomm. adopted, 2018 WL 2583113 (4 June 2018); see also Johnson v. Berryhill, Civ. Act. No. 6:17-3306-MGL-KFM, 2019 WL 922710, at *14-15 (D.S.C. 19 Feb. 2019), rep. & recomm. adopted, 2019 WL 917194 (25 Feb. 2019); Burnette v. Astrue, No. 2:08-CV-9-FL, 2009 WL 863372, *15-16 (E.D.N.C. 2 Dec. 2008), mem. & recomm. adopted, 2009 WL 863372, at *1 (24 Mar. 2009) (discussing RDL at *5); 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1) (recognizing the DOT as an authoritative source of job information). In making this determination, the court deems "repetitive, simple tasks" to be substantively equivalent to "simple, routine, repetitive tasks," a more commonly used term. "A job's RDL reflects the degree of analytical ability required by the job, with the levels arranged in ascending order of complexity from level 1 to level 6." Webb, 2018 WL 2198829, at *7. RDL 2 to 5 require the following abilities:
All of the past relevant work the ALJ found plaintiff capable of performing requires an RDL greater than 3. Specifically, warehouse supervisor, DOT # 222.137-034, requires an RDL of 4, 1991 WL 672071; computer programmer, DOT # 007.167-018, requires an RDL of 5, 1991 WL 646283; counselor, DOT # 045.107-038, requires an RDL of 5, 1991 WL 646628; and project manager, DOT # 189.117-030, requires an RDL of 5, 1991 WL 671489. See Tr. 26 ¶ 6 (ALJ's specification of the foregoing occupations as plaintiff's past relevant work); 64-65 (vocational expert's testimony providing the DOT code numbers for each of the occupations).
It may be that the ALJ deemed the limitation of plaintiff to repetitive, simple tasks to be transient, not meeting the duration requirement, that is, that it was not expected to last for a continuous period of at least 12 months. See 20 C.F.R. §§ 404.1509, 416.909. This interpretation is arguably supported by his explicit reference to Dr. King's opinion that plaintiff's prognosis was "good" (Tr. 341) and to plaintiff's not receiving regular mental health treatment besides pain management counseling with Dr. Phillips—that is, licensed psychologist Leslie R. Phillips, Ph.D.—from February to April 2016 (see, e.g., Tr. 23 ¶ 5; 432-34, 438-44, 441-44, 446-49, 451-54).
Of course, Dr. King points to pain as an underlying factor in plaintiff's mental condition. See Tr. 341. The treatment by Dr. Phillips could therefore plausibly be seen as treatment relating to plaintiff's mental condition. Notably, such treatment began about 18 months after Dr. King's evaluation.
More basically, the ALJ does not expressly cite duration of the limitation to repetitive, simple work as justifying his ultimately determining plaintiff capable of doing work more complex than that despite giving great weight to the limitation. He does not address in any other respect the duration of the limitation to repetitive, simple work.
Indeed, as can be seen, the ALJ does not address expressly at all Dr. King's limitation of plaintiff to repetitive, simple work. The ALJ's omission of express reference to this limitation, while citing more benign opinions by Dr. King, is suggestive of impermissible cherrypicking. 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." (internal quotation marks omitted)). Particularly in light of the ALJ's ultimate determination that plaintiff can perform work more complex than repetitive, simple tasks, the lack of any reference by the ALJ to the repetitive, simple work limitation raises questions over the extent to which the ALJ actually considered it.
This concern is heightened by the ALJ's finding at step two of the sequential analysis that plaintiff's depression is not a severe impairment. The ALJ stated:
Tr. 19 ¶ 3. It is difficult to square the ALJ's finding that plaintiff's depression "does not cause more than minimal limitation in [his] ability to perform basic mental work activities" with his subsequent attribution of great weight to Dr. King's finding that plaintiff's depression-related mental condition limited him to repetitive, simple work. Tr. 19 ¶ 3. Again, there is no express reference to the duration of plaintiff's mental condition as being a factor in the ALJ's analysis.
By not adequately explaining his handling of Dr. King's limitation of plaintiff to repetitive, simple work, the ALJ failed to build "`an accurate and logical bridge from the evidence to his conclusion'" that plaintiff could perform his past relevant work. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). This failing precludes the court from conducting meaningful substantial evidence review of the ALJ's decision and requires remand. Id. at 189-91; Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 16) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 18) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and 1383(c)(3). The court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
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 6 August 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 after service of the objections on the responding party.
Pl.'s Mem. 22 (CM/ECF page no.).
