ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on petition for judicial review of the decision of the Commissioner filed by the plaintiff, Aubrey F. Gandy, on July 14, 2017. For the following reasons, the decision of the Commissioner is
The plaintiff, Aubrey F. Gandy, filed applications for Disability Insurance Benefits and Supplemental Security Income on June 23, 2015, alleging a disability onset date of April 25, 2015. (Tr. 17). The Disability Determination Bureau denied Gandy's application initially on October 20, 2015, and again upon reconsideration on January 14, 2016. (Tr. 17). Gandy subsequently filed a timely request for a hearing on March 14, 2016. (Tr. 17). A hearing was held on February 13, 2017, before Administrative Law Judge (ALJ) Edward Kristof, and the ALJ issued an unfavorable decision on March 1, 2017. (Tr. 17-27). Vocational Expert (VE) Richard T. Fisher and Gandy appeared and testified at the hearing. (Tr. 17). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).
Gandy met the insured status requirements of the Social Security Act through March 31, 2016. (Tr. 19). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Gandy had not engaged in substantial gainful activity since April 25, 2015, the alleged onset date. (Tr. 19).
At step two, the ALJ determined that Gandy had the following severe impairments: bipolar disorder, post-traumatic stress disorder (PTSD), borderline functioning disorder, and an abdominal gunshot wound with a history of pancreatitis. (Tr. 20). Gandy's non-severe impairments consisted of breathing issues, palpitations, and visual acuity problems. (Tr. 20). However, the ALJ determined that Gandy's non-severe impairments did not cause more than a minimal limitation on his ability to perform basic work activities. (Tr. 20).
At step three, the ALJ concluded that Gandy did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 20). The ALJ determined that Gandy's mental impairments, considered singly and in combination, did not meet or medically equal the criteria of Listings 12.04, 12.11, and 12.15. (Tr. 20). The ALJ considered the paragraph B criteria for mental impairments, which required at least one extreme or two marked limitations in a broad area of functioning:
(Tr. 20). The ALJ defined a marked limitation as functioning independently, appropriately, effectively, and on a sustained basis, while an extreme limitation is the inability to function independently, appropriately, or effectively, and on a sustained basis. (Tr. 20-21).
The ALJ determined that Gandy had moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing himself. (Tr. 21). Because Gandy's mental impairments did not cause at least two "marked" limitations or one "extreme" limitation, the paragraph B criteria was not satisfied. (Tr. 21). Additionally, the ALJ determined that the paragraph C criteria was not satisfied. (Tr. 21).
After consideration of the entire record, the ALJ then assessed Gandy's residual functional capacity (RFC) as follows:
(Tr. 21). The ALJ explained that in considering Gandy's symptoms he followed a two-step process. (Tr. 22). First, he determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that reasonably could be expected to produce Gandy's pain or other symptoms. (Tr. 22). Then, he evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Gandy's functioning. (Tr. 22).
The ALJ found that Gandy's medically determinable impairments reasonably could be expected to cause the alleged symptoms. (Tr. 23). However, the ALJ indicated that Gandy's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Tr. 23). The ALJ noted that Gandy had a history of inconsistent outpatient treatment, with diagnoses consisting of bipolar, most recent episode depression, PTSD, borderline intellectual functioning, and a GAF assignment of 50. (Tr. 23). Also, Gandy had difficulty when he was off his medications. (Tr. 25). Yet, the ALJ noted that Gandy sustained a full prescription and treatment coverage throughout the period under consideration. (Tr. 25). Gandy's treating sources did not suggest that he was incapable of taking his medications reliably or that he had undesirable side effects. (Tr. 25). Thus, the ALJ found that the record suggested that he did not make taking his medications a priority, which the ALJ determined was consistent with the longitudinal picture of the unreliability and inconsistency in his assertions regarding the impact of his impairments on his functioning. (Tr. 25).
At step four, the ALJ found that Gandy had no past relevant work. (Tr. 25). Considering Gandy's age, education, work experience, and RFC, the ALJ concluded that there were jobs in the national economy that he could perform, including laundry laborer (52,000 jobs nationally), cook's helper (85,000 jobs nationally), and meat trimmer (43,000 jobs nationally). (Tr. 26). The ALJ found that Gandy had not been under a disability, as defined in the Social Security Act, from April 25, 2015 through the date of this decision, March 1, 2017. (Tr. 26-27).
The standard for judicial review of an ALJ's finding that a claimant is not disabled within the meaning of the Social Security Act is limited to a determination of whether those findings are supported by substantial evidence.
Disability and supplemental insurance benefits are available only to those individuals who can establish "disability" under the terms of the Social Security Act. The claimant must show that he is unable "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."
Gandy has requested that the court reverse the ALJ's decision and remand for additional proceedings. In his appeal, Gandy has argued that: (1) the ALJ made his own independent medical findings in determining Gandy's mental limitations; (2) the ALJ's hypothetical question to the VE and the RFC failed to account for Gandy's limitations in mental functioning; (3) the ALJ improperly evaluated the medical opinion of Dr. Tran; and (4) the ALJ analysis of Gandy's symptoms did not comply with SSR 16-3p.
Gandy has argued that the ALJ created an evidentiary deficit when he assigned reduced weight to Dr. Tran's opinion and failed to consider the State agency psychologists' opinions. Therefore, Gandy asserts that the ALJ made his own independent medical findings in determining the mental RFC. An ALJ is not required to rely solely on medical opinions to determine the RFC.
Gandy contends that the ALJ filled the evidentiary deficit with his own unqualified medical determination. The ALJ in the RFC finding determined that Gandy could not perform tandem work, or fast-paced/piece-rate work, and that he would likely be off-task 5% of the workday beyond regular breaks. However, there is no basis in the record for the ALJ's specific limitations. It is unclear how or why the ALJ determined that Gandy was restricted to no fast-paced or piece-rate work and that he would be off-task 5% of the workday. Thus, the ALJ did not make a logical connection between the evidence and his conclusion.
The Commissioner, without citing any authority, has argued that in a previous decision dated April 24, 2015, the ALJ found that Gandy would be off-task for 5% of the workday and that decision was not appealed, therefore it was final. However, the ALJ included no such argument in his decision, so the court will not consider this argument. See
Moreover, under SSR 96-8p the ALJ was required to provide a narrative discussion describing how the evidence supported each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). The ALJ has failed to explain how the medical evidence supported the RFC finding. Therefore, the court is unable to follow why the ALJ determined that Gandy was not more limited.
Next, Gandy has argued that the ALJ's hypothetical question to the VE and the RFC failed to account for all his limitations in concentrating, persisting, or maintaining pace. The ALJ's RFC assessment and the hypothetical posed to the VE must incorporate all of the claimant's limitations supported by the medical record.
The ALJ assessed the mental RFC as follows:
(Tr. 21).
Courts repeatedly have held terms like "simple, repetitive tasks" alone do not exclude from the VE's consideration those positions that present significant problems with concentration, persistence, or pace.
Moreover, the RFC and the hypothetical posed to the VE must incorporate all of the claimant's limitations supported by the medical record.
Moreover, Gandy pointed to evidence in the record that he had racing thoughts and problems with focus and concentration, which indicated an inability to stay on task. (Tr. 536, 544). He reported isolation within the home and difficulty leaving at times, which indicated absenteeism. (Tr. 539, 649). The ALJ asked the VE his opinion concerning off-task time (15% of the workday) and an employer's tolerance for absences in the workplace. He did not explain why he questioned the VE about those issues. Those limitations were not adopted in the decision. Therefore, despite considering the issues of off-task time and absenteeism, the ALJ failed to provide any analysis about such consideration. See
Next, Gandy has argued that the ALJ did not properly address the regulatory factors under 20 C.F.R. § 404.1527(c) when evaluating the opinion of Dr. Tran. A treating source's opinion is entitled to controlling weight if the "opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record.
"`[O]nce well-supported contradicting evidence is introduced, the treating physician's evidence is no longer entitled to controlling weight' and becomes just one more piece of evidence for the ALJ to consider."
If the ALJ decides that the treating physician's opinion should not be given controlling weight, the ALJ is "required by regulation to consider certain factors in order to decide how much weight to give the opinion."
The ALJ assigned reduced weight to Dr. Tran's opinion. (Tr. 24). Dr. Tran indicated that the highest GAF score she assigned Gandy in the past year was 53. However, she had assigned a GAF score of 57 and 58. Thus, the ALJ concluded that, in providing an opinion of Gandy's functioning, Dr. Tran had not referred back to her own prior reports, which diminished the evidentiary value and reduced the weight of the opinion. (Tr. 24). The ALJ indicated that the RFC finding accommodated most of the limitations in the narrative portions of Dr. Tran's statements. However, the ALJ determined that her statement that Gandy had no useful ability to function or was unable to meet competitive standards in most areas of work-related functioning was not supported by the record as a whole. (Tr. 24). Additionally, the ALJ cited inconsistencies from Dr. Tran's September 2016 and January 2017 opinions. (Tr. 25).
An ALJ first must determine whether the treating source's opinion is entitled to controlling weight in consideration of supportability and consistency with the record. If the ALJ finds the opinion is lacking in either of these aspects, the ALJ must proceed to step two, where he applies the checklist of factors articulated in 20 C.F.R. § 404.1527. The ALJ must use these factors to determine exactly what weight to assign to the opinion. This process consists of two "separate and distinct steps."
The ALJ discussed the supportability and consistency of Dr. Tran's opinion, while also acknowledging that Dr. Tran was Gandy's treating psychiatrist. However, the ALJ did not consider the length of the relationship and the frequency of examination, as well as the nature and the extent of the relationship. Gandy indicated that he had a treating relationship with Dr. Tran since July of 2015 and that she treated him frequently, sometimes monthly. The length and the nature and extent of the treating relationship are factors that weighed heavily in Dr. Tran's favor, pursuant to 20 C.F.R. § 404.1527. Additionally, the ALJ noted inconsistencies in Dr. Tran's findings from September 2016 and January 2017. However, the ALJ failed to account for Gandy's bipolar I disorder. Bipolar is episodic, so the fact that Gandy experienced some good days does not in and of itself mean that he would not have bad days in the future. See
Gandy has argued that the ALJ did not comply with SSR 16-3p in considering his subjective symptoms. An ALJ's evaluation of subjective symptoms will be upheld unless it is patently wrong.
Under SSR 16-3, the ALJ first must determine whether the claimant has a medically determinable impairment that reasonably could be expected to produce his symptoms. SSR 16-3p, 2016 WL 1119029, at *2. Then, the ALJ must evaluate the "intensity, persistence, and functionally limiting effects of the individual's symptoms to determine the extent to which the symptoms affect the individual's ability to do basic work activities." SSR 16-3p, 2016 WL 1119029, at *2. An individual's statements about the intensity and persistence of the pain may not be disregarded because they are not substantiated by objective medical evidence. SSR 16-3p, 2016 WL 1119029 at *5. In determining the ability of the claimant to perform work-related activities, the ALJ must consider the entire case record, and the decision must contain specific reasons for the finding. SSR 16-3p, 2016 WL 1119029, at *4, 9. The ALJ must weigh the claimant's subjective complaints, the relevant objective medical evidence, and any other evidence of the following factors:
See
The ALJ discounted Gandy's statements concerning the intensity, persistence, and limiting effects of his symptoms because they were not entirely consistent with the medical evidence and other evidence in the record. (Tr. 23). The ALJ explained why the objective medical evidence did not support his complaints of pain. Also, the ALJ addressed Gandy's daily living activities and found that "the records show a much more functionally able individual than the claimant alleges." (Tr. 23).
However, the ALJ noted "some inconsistencies" in the record, yet he did not indicate what inconsistences he was referencing.
Moreover, the Commissioner has argued that the ALJ considered: (1) Gandy's alleged inability to wash and to shave, yet he did not appear disheveled at various office visits; (2) Gandy's street drug use; (3) Gandy's alleged vision problems that were unsupported by the record; and (4) that Gandy's condition improved when he took his medication as directed. An ALJ must assess the claimant's subjective symptoms rather than assessing his "credibility." SSR 16-3p. The subjective symptom evaluation is not an examination of an individual's character. On remand, the ALJ is directed to evaluate of Gandy's subjective complaints, as prescribed by SSR 16-3p.
Gandy identified inconsistencies with the VE's testimony and the Dictionary of Occupational Titles (DOT). He asserts that the ALJ's handling of the VE's testimony did not meet the requirements of SSR 00-4p. However, since the court has remanded this matter, it need not consider the arguments presented by Gandy as they relate to SSR 00-4p and the apparent conflicts with the DOT.
Based on the foregoing reasons, the decision of the Commissioner is