GLEN E. CONRAD, Senior District Judge.
Plaintiff has filed this action challenging the final decision of the Commissioner of Social Security denying plaintiff's claim for a period of disability and disability insurance benefits under the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423. Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). As reflected by the memoranda and argument submitted by the parties, the issues now before the court are whether the Commissioner's final decision is supported by substantial evidence, or whether there is "good cause" to necessitate remanding the case to the Commissioner for further consideration.
The plaintiff, Derek K. McQuaig, was born on October 16, 1966, and eventually completed his high school education. Mr. McQuaig has also completed two years in college and previously worked as a communications engineer. He last worked on a regular and sustained basis in 2008. (Tr. 36). On January 23, 2014, Mr. McQuaig filed an application for a period of disability and disability insurance benefits. The record suggests that an earlier application for such benefits had proven unsuccessful. In filing his most recent claim, Mr. McQuaig alleged that he became disabled for all forms of substantial gainful employment on June 20, 2012, due to hip pain, digestive disorder, hypertension, posttraumatic stress disorder, cervical spine impairment, fibromyalgia, left knee injury, headaches, and chronic obstructive pulmonary disease. He now maintains that he has remained disabled to the present time. The record reveals that Mr. McQuaig met the insured status requirements of the Act through the fourth quarter of 2013, but not thereafter.
Mr. McQuaig's most recent application was denied upon initial consideration and reconsideration. He then requested and received a
(Tr. 17). Given such a residual functional capacity, and after considering plaintiff's age, education, and prior work experience, as well as testimony from a vocational expert, the Law Judge ruled that Mr. McQuaig retained sufficient functional capacity to perform several specific sedentary work roles existing in significant number in the national economy. (Tr. 24). Accordingly, the Law Judge ultimately concluded that plaintiff was not disabled, and that he is not entitled to a period of disability or disability insurance benefits.
While the plaintiff may be disabled for certain forms of employment, the crucial factual determination is whether the plaintiff is disabled for all forms of substantial gainful employment.
After a review of the record in this case, the court is unable to conclude that the Commissioner's final decision is supported by substantial evidence. With regard to non-exertional limitations, the court must conclude that the Law Judge did not account for all of the manifestations of plaintiff's conditions in the hypothetical questions put to the vocational expert. Thus, the court finds "good cause" for remand of this case to the Commissioner so that all of plaintiff's work-related limitations can be considered in assessing his capacity for other work roles.
The medical record confirms that Mr. McQuaig has a history of depression and pain related to physical impairments. On March 28, 2012, Mr. McQuaig established treatment at the Veterans Affairs Medical Center ("VAMC") in Salem, Virginia. (Tr. 608). During that visit, he saw VAMC Physician Assistant Christopher L. Lentz for a general evaluation and Dr. Christina B. Shook for a psychological evaluation. (Tr. 598, 608). Dr. Shook observed that Mr. McQuaig had poor concentration, including during activities such as watching television and reading the newspaper, and that this problem occurred "quite a bit" or more than half of the time. (Tr. 600, 603, 606).
On November 18, 2014, Lentz and Dr. John F. Gaylord completed a medical source statement for Mr. McQuaig.
On March 25, 2016, Dr. Gaylord completed a separate medical source statement setting forth Mr. McQuaig's physical limitations since 2007. (Tr. 617-21). In this statement, Dr. Gaylord concluded that Mr. McQuaig's pain and other symptoms would frequently interfere with Mr. McQuaig's ability to pay attention and concentrate during an eight-hour workday. (Tr. 620).
On October 18, 2016, Dr. Gaylord and Lentz completed a medical source statement regarding Mr. McQuaig's mental health. (Tr. 1478-81). The statement listed anxiety and depression as Mr. McQuaig's mental health diagnoses. (Tr. 1478). Dr. Gaylord indicated that Mr. McQuaig had experienced the following symptoms since 2008: irritability, social withdrawal or isolation, and intermittent insomnia. (Tr. 1479). According to Dr. Gaylord, Mr. McQuaig experienced no to mild limitations with understanding, remembering, and carrying out simple, one to two step instructions, but experienced moderate difficulty understanding, remembering, and carrying out detailed instructions. (Tr. 1480). While Mr. McQuaig could sustain an ordinary routine without supervision, he had moderate to marked limitations in maintaining attention and concentration for extended periods, completing a normal workday, and performing work at a consistent pace without rest periods. (Tr. 1480). Finally, Dr. Gaylord opined that Mr. McQuaig would be absent from work more than three times per month and stated that Mr. McQuaig's symptoms had been present since January 2008. (Tr. 1481).
In determining Mr. McQuaig's residual functional capacity, the Law Judge did not give controlling weight to any of Dr. Gaylord's opinions. Despite seemingly identifying Dr. Gaylord as a treating physician, the Law Judge concluded that the medical evidence did not support the limitations identified by Dr. Gaylord. (Tr. 22). As support for that conclusion, the Law Judge cited his analysis regarding the paragraph B criteria. (Tr. 22).
When the Law Judge discussed the paragraph B criteria, he commented on Mr. McQuaig's limitations regarding concentration, persistence, or pace as follows:
(Tr. 16) (emphasis in original) (internal citations omitted).
The difficulty in this case is two-fold. First, the Law Judge's determination as to Mr. McQuaig's ability to concentrate is not clear. The court cannot discern from the Law Judge's decision in which ways Mr. McQuaig's limitations in concentration, persistence, or pace were mild and in which way those limitations were moderate. Moreover, the Law Judge appears to correlate an ability to perform simple and some detailed tasks with the ability to sustain concentration, but "the ability to perform simple tasks differs from the ability to stay on task."
Second, in formulating a hypothetical question for the vocational expert, it is not clear whether the Law Judge attempted to account for his conclusion that Mr. McQuaig experiences mild to moderate difficulties in concentration, persistence, or pace. The Law Judge asked the vocational expert to consider someone with Mr. McQuaig's age, education, and prior work experience and the following limitations:
(Tr. 52). While the Law Judge adopted the vocational expert's opinion that plaintiff can perform work as an assembler, stuffer, or gauger, the vocational expert was not asked to consider the significance of at least some moderate limitations in concentration, persistence, or pace in the performance of such jobs, all of which would seemingly require sustained attention and concentration. Indeed, the Law Judge's question to the vocational expert assumed that Mr. McQuaig had the ability to engage in or perform tasks requiring concentration and attention throughout an eight-hour workday with normal breaks, an assumption that would appear contrary to the Law Judge's conclusion that the plaintiff experiences mild to moderate difficulties in concentration, persistence, or pace. Nevertheless, the Law Judge relied on the testimony of the vocational expert in determining that Mr. McQuaig retains sufficient functional capacity for several specific work roles existing in significant number in the national economy.
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In his opinion, the Administrative Law Judge did not offer any rationale for omitting mild to moderate limitations in concentration, persistence, and pace in his assessment of plaintiff's residual functional capacity, or in his hypothetical questions propounded to the vocational expert. The court notes that in similar cases, the Commissioner often argues that moderate limitations are subsumed under a finding that a claimant is capable of performing only simple and routine tasks. However, the court is simply unable to conclude that the hypothetical questions, which assumed that plaintiff can perform unskilled work requiring the execution of simple, and even some detailed, job instructions, was sufficient to alert the vocational expert to the existence of at least some moderate limitations in plaintiff's concentration, work persistence, and attendance to task. Indeed, the court believes that consideration of such limitations would be especially important in assessing capacity for production line work such as that required to be an assembler.
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On appeal to this court, the plaintiff also asserts that the Law Judge failed to give proper consideration to the opinions of Dr. Gaylord.
Under the regulations setting forth the standards for evaluating medical opinion evidence, the opinion of a treating physician is entitled to "`controlling weight' . . . so long as the opinion is `well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record[.]'"
The court believes that there is substantial evidence to support the Law Judge's decision not to give Dr. Gaylord's opinions controlling weight. There is no indication that Dr. Gaylord ever saw Mr. McQuaig during a time in which Mr. McQuaig still enjoyed insured status, and it is not clear whether Dr. Gaylord treated Mr. McQuaig except to complete the medical source statements. Additionally, Dr. Gaylord's opinions extend back to 2007 or 2008, but Mr. McQuaig did not receive care at the Salem VAMC until March of 2012 and Dr. Gaylord gives no explanation as to why he believes plaintiff's mental health manifestations relate back to 2008. Although the medical source statements indicate that Mr. McQuaig experienced memory problems that impeded his ability to work, the clinical notes taken by Lentz do not support a finding of memory problems in 2012 and 2013, the period for which Mr. McQuaig seeks disability. The record also indicates that Mr. McQuaig experienced improvement in his pain with medication and some improvement in depression-related symptoms during the relevant period. Thus, the court concludes that the Law Judge reasonably declined to give controlling weight to Dr. Gaylord's work-related assessments.
However, the court shares plaintiff's frustration with the Law Judge's failure to specify what lesser weight he accorded to Dr. Gaylord's opinions. The resulting uncertainty is particularly troublesome when the Law Judge has given little weight to almost all of the other evidence in the record, including the denial of Mr. McQuaig's previous application for benefits, Mr. McQuaig's disability rating of ninety percent from the Department of Veterans Affairs, and the opinions of the state psychological and medical consultants. (Tr. 22-23). The Law Judge also found the plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms to be inconsistent with the medical record. (T.R. 21). The Law Judge appears to elevate his understanding of the clinical findings above all other opinions and statements in the record. However, inasmuch as the court has determined to remand the case for other reasons, plaintiff will be permitted to make arguments regarding the weight accorded to Dr. Gaylord's opinions to a fact finder at the time of a supplemental administrative hearing. Also in light of the court's decision to remand the case to the Commissioner, the court declines to address Mr. McQuaig's remaining claims of error.
In summary, the court concludes that the critical hypothetical questions posed by the Law Judge, excluding plaintiff's limitations in concentration, persistence, and pace, were not consistent with the Law Judge's explicit findings. Accordingly, the court finds "good cause" for remand of this case to the Commissioner for further consideration and development. If the Commissioner is unable to decide the case in plaintiff's favor on the basis of the existing record, the Commissioner will conduct a supplemental administrative hearing, at which time a comprehensive hypothetical question can be put to a qualified vocational expert. Upon remand, both parties will have the opportunity to present additional evidence and argument. An appropriate judgment and order will be entered this day.
The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.