JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Pamela Allen Gammons ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") on the grounds that she is not disabled.
Plaintiff filed applications for DIB and SSI on 22 July 2010 and 27 August 2010, respectively, alleging a disability onset date of 30 November 2008. Transcript of Proceedings ("Tr.") 155. The applications were denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 155. On 19 June 2012, a hearing was held before an Administrative Law Judge ("ALJ"), at which plaintiff and a vocational expert testified. Tr. 155, 179-217. The ALJ issued a decision denying plaintiff's claim on 27 July 2012. Tr. 155-65. Plaintiff timely requested review by the Appeals Council. Tr. 150-51. The Appeals Council admitted additional evidence (Tr. 915-940)
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 42 U.S.C. § 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 42 U.S.C. § 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." 42 U.S.C. §§ 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:
20 C.P.R.§§ 404.1520(a)(4), 416.920(a)(4).
The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.
In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. §§ 404.1523, 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id. §§ 404.1523, 416.923.
Plaintiff was 32 years old on the alleged onset date of disability and 39 years old on the date of the hearing. Tr. 163 ¶ 7. She has a G.E.D. and past relevant work as a corrections officer, vinyl siding business owner, truck driver, and home care attendant. Tr. 163 ¶¶ 6, 8.
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 her alleged onset of disability. Tr. 157 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: depression
The ALJ next determined that plaintiff had the RFC to perform light work-that is, to lift and carry up to 20 pounds occasionally and 10 pounds frequently, and to stand, walk, and sit for 6 hours in an 8-hour day.
Tr. 159 ¶ 5.
At step four, the ALJ found that plaintiff was unable to perform her past relevant work. Tr. 163 ¶ 6. At step five, the ALJ accepted the testimony of the vocational expert and found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of hand packer, produce inspector, and garment folder. Tr. 163-64 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled. Tr. 164 ¶ 11.
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. Perales, 402 U.S. at 401.
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.
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, "the court must `review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'" See, e.g., Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
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 argues that the case should be remanded for the award of benefits
"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. Chafer, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. R. 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, and their consistency with the record. 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. R. 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."). Where there are multiple opinions from a single source, an ALJ does not necessarily have to discuss each opinion separately to make clear the weight given it and the underlying reasons. See Soc. Sec. R. 96-2p, 1996 WL 374188, at *2.
The opinions of physicians and psychologists on issues reserved to the Commissioner, that is, legal conclusions, are not entitled to special weight because of their source, including statements that the claimant is disabled or unable to work. 20 C.P.R. §§ 404.1527(d)(1), (3), 416.927(d)(l), (3). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. R. 96-5p, 1996 WL 374183, at *3 (2 July 1996).
In a letter addressed to "To Whom It May Concern," dated 12 July 2010, Dr. Joseph stated the following opinion regarding plaintiff:
Tr. 632.
The ALJ accurately summarized Dr. Joseph's opinion as follows:
Tr. 162 ¶ 5.
He stated that he was giving "no weight" — not simply limited weight — to Dr. Joseph's opinion. Tr. 162 ¶ 5. The ALJ gave five reasons for his determination, numbered here in brackets for ease of reference:
Tr. 162-63 ¶ 5.
Plaintiff does not challenge three of the reasons given by the ALJ — namely, that the disability issue is reserved to the Commissioner, plaintiff had significant outside stressors around July 2010, and Dr. Joseph found plaintiff to have only moderate signs of depression in June and July 2010. These reasons appear to be proper. Reservation of the issue of disability to the Commissioner is, as noted, expressly provided for in the Regulations. See 20 C.P.R. §§ 404.1527(e)(1), (3), 416.927(e)(l), (3); Soc. Sec. R. 96-5p, 1996 WL 374183, at *3. Substantial evidence of record appears to support the other two reasons. In his progress note on his 28 June 2010 visit with plaintiff, Dr. Joseph did find plaintiff to have moderate depression and discussed plaintiff's stress from her son's being charged with kidnapping and rape of a child. Tr. 635; see also Tr. 162 ¶ 5. In the progress note of the 12 July 2010 visit, Dr. Joseph did again find plaintiff to have moderate depression, and mentioned plaintiff's report that her son faced 20 years in prison. Tr. 634; see also Tr. 162 ¶ 5.
Plaintiff does, however, challenge the remaining two reasons given by the ALJ — namely, that Dr. Joseph gave his opinions after four therapy sessions with plaintiff and that as of April 2010 plaintiff was taking no mental health medication. Plaintiffs challenge has merit.
With respect to the four sessions finding, it is literally true that Dr. Joseph rendered his opinion after a succession of four therapy sessions with plaintiff between April and July 2010, the reports of which appear in the record. Tr. 633-38. The clear implication is that Dr. Joseph's treating relationship with plaintiff consisted solely of these sessions spanning only four months.
In fact, though, other evidence of record shows that Dr. Joseph's treating relationship with plaintiff extended back to at least 2008. For example, the note of an office visit by plaintiff with her primary care provider, Batish Family Medicine ("Batish"), on 28 May 2008 states, "Here for labs ordered by Dr. David Joseph at Southeastern." Tr. 505 (capitalization modified). In addition, the note on an office visit by plaintiff at Trinity Wellness Center on 8 August 2011 states under the heading "Past Psychiatric History": "previous treatment- receiving therapy and medication management[.] In Jan 2011 had to stop due to loss of Insurance, w[as] [seen] there since 2008 by Dr. David Joseph." Tr. 803. The report on plaintiff's admission on 19 January 2012 to New Hanover Regional Medical Center for psychiatric treatment states her report that "[s]he saw Dr. Joseph in the past, she says for about six years, and he had diagnosed her with depression, anxiety, posttraumatic stress disorder, and bipolar affective disorder. He used multiple different medications." Tr. 827. Nowhere in his decision does the ALJ address plaintiff's treatment history with Dr. Joseph predating 2010.
Admittedly, there is no documentation in the record beyond that cited of Dr. Joseph's treatment of plaintiff prior to the March 2010 therapy session, such as progress notes from that period on any therapy or medication management sessions. Nonetheless, given the ALJ's reliance on the low number of sessions over a four-month period in discrediting Dr. Joseph's opinion, it was incumbent upon him to explain his assessment of the evidence that Dr. Joseph has a much longer relationship with plaintiff. The need for such an explanation is heightened by the fact that he gave no weight at all to Dr. Joseph's opinion; the substantial disparity between the low number of sessions during and brevity of the period of treatment relied on by the ALJ as opposed to the much lengthier period indicated by the other portions of the record, over two years; and the potential significance the length and intensity of a treatment relationship can have in evaluating a medical opinion. As stated in the Regulations:
20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i).
The court concludes that without an explanation by the ALJ of the evidence that plaintiff had a treating relationship with Dr. Joseph extending back to at least 2008 it cannot determine whether the ALJ's finding that Dr. Joseph rendered his decision after four therapy sessions is supported by substantial evidence.
Turning to the ALJ's finding that plaintiff was not taking mental health medication, it is an apparent reference to plaintiff's report to Dr. Joseph at their 26 April 2010 session that she was "(n]ot on any medications." Tr. 636. The finding is ambiguous. It is unclear whether it signifies that plaintiff did not then have a prescription for any medication or that she had a prescription but was not taking it. At her 8 March 2010 visit with Dr. Joseph, she reported that she had been hospitalized with dystonia due to Haldol and was told to stop all medications and see Dr. Joseph. Tr. 637. She reported that she had previously taken Seroquel, Lithium, Lamictal, Prozac, Wellbutrin, and Paxil. Tr. 637. He diagnosed her with bipolar disorder, then characterized by moderate depression, and prescribed a trial of the bipolar medication Tegretol. Tr. 638. It is not clear whether the prescription extended until the April session, although it was noted that she was to return in a month. Tr. 638.
Whether the ALJ's finding was intended to signify noncompliance with medication or nonprescription of it, the implication of the finding is that plaintiff's mental condition was not sufficiently serious to warrant medication. In fact, though, at the April session, Dr. Joseph found that it was: he prescribed the antidepressant Seroquel for her. Tr. 636. Although he again diagnosed her with bipolar disorder, finding it was manifested most recently by moderate depression, he also noted that "[t]here are signs of severe depression." Tr. 636. Moreover, at the June session, Dr. Joseph doubled the dosage of Seroquel (Tr. 635). At the July session, he tripled the original dosage and also prescribed the antidepressant Klonopin (Tr. 634). Thus, assuming plaintiff was not prescribed mental health medication as of April, it represented a brief pause in her treatment regimen.
Thus, it is unclear precisely how and to what extent the ALJ's finding regarding plaintiff's medication status in April 2010 supports his complete rejection of Dr. Joseph's opinion. Given these ambiguities, the court cannot determine whether this finding is supported by substantial evidence as a basis for the ALJ's determination on Dr. Joseph's opinion.
The remaining question is whether the deficiencies in the ALJ's findings regarding the four therapy sessions and plaintiff's medication status in April 2010 require remand. The court finds that they do. The findings comprise two of the five bases cited by the ALJ for his determination on Dr. Joseph's opinion. The deficiencies also present the possibility of material underassessment by the ALJ of the severity of plaintiff's depression. Those concerns are heightened by the complete nature of the ALJ's rejection of Dr. Joseph's opinion and the potential significance a treating psychiatrist's opinion can have in the evaluation of a claimant's mental impairments. Moreover, the ALJ does not directly address the two grounds cited by Dr. Joseph for his determination of disability — "the fact that her severe mood swings were difficult to treat, and she was chronically suicidal"—even though there is considerable evidence supporting these findings. See Tr., e.g., 792, 803, 907 (13 June 2012 statement of treating family nurse practitioner that "plaintiff's medications are difficult to manage at times due to her history of gastric bypass surgery which interferes with the absorption of medications"). Thus, the court cannot say that the various deficiencies are harmless. See, e.g., Hickman v. Colvin, No. 4:12-CV-288-FL, 2014 WL 652545, at *7 (31 Jan. 2014) (citing Shinseki v. Sanders, 556 U.S. 396 (2009)), mem. & recomm'n adopted by 2014 WL 652545, at *1 (E.D.N.C. 19 Feb. 2014). It will therefore be recommended that the ALJ's decision be remanded because of the deficiencies with respect to the ALJ's determination on Dr. Joseph's opinion.
The ALJ determined that plaintiff's allegations regarding the limiting effects of her depression were not fully credible. Tr. 162 ¶ 5; see also 160 ¶ 5. He summarized his assessment as follows:
Tr. 162.
Plaintiff, of course, challenges the ALJ's interpretation of the medical records, as discussed above with respect to Dr. Joseph's opinion and below in various other respects. She also, though, disputes the ALJ's findings that she failed to report staying in her bedroom and her mental health problems generally as the ALJ asserts. Plaintiffs challenge is meritorious.
As to reporting staying in bed, the report on her 19 January 2012 admission to New Hanover Regional Medical Center for psychiatric treatment shows that she reported her staying in bed to attending psychiatrist Douglas A. Waldrep, M.D. The report states: "She has been staying in her bed, she says most of the time for over the past year, which has increased over the past several weeks." Tr. 827. The discharge summary a day later similarly stated, "She has been in bed most of the time over the past year." Tr. 823. Although the ALJ described this hospitalization in his decision, he did not mention plaintiff's reporting this information. See Tr. 162 ¶ 5. Thus, the ALJ's finding that plaintiff "failed to ever report" staying in her bed all day "to any mental health professional" is factually incorrect. Tr. 162 (emphasis added).
The ALJ's finding that plaintiff typically failed to report her mental health issues or symptoms to any primary care or treating physician other than her mental health counselor is of questionable accuracy. While the ALJ cites two instances in which plaintiff did fail to report her psychiatric conditions to non-mental health providers (see Tr. 162), there are instances in which she did. For example, she reported anxiety and depression to Pinehurst Surgical and Moore Regional Hospital in July and September 2010 in connection with abdominal procedures performed on her during those months. See Tr., e.g., 667, 711, 735, 750, 760. In addition, the report on the 17 December 2010 examination of plaintiff at Wilmington Gastroenterology Associates states that she "complains of anxiety/panic, depression, difficulty sleeping, inability to concentrate and homicidal thoughts, denies suicidal thoughts." Tr. 782 (capitalization modified). Records from Batish for 2008 show that she repeatedly reported psychiatric symptoms to it, albeit prior to the alleged onset of disability. See, e.g., 509-10 (31 July 2008), 513 (8 May 2008), 514-15 (30 Apr. 2008). In any event, during periods when she was receiving treatment from psychiatric providers, it is not altogether clear why her failure to report her psychiatric problems to providers not treating her for those problems would suggest that she did not have such problems.
To be proper, the reasons given by an ALJ for discrediting the allegations of a claimant must be supported by the evidence. See Soc. Sec. R. 96-7p, 1996 WL 374186, at *2 (2 July 1996). The reasons cited by the ALJ here, as set out in the summary of his credibility analysis, are not squarely supported by the evidence on the grounds discussed. These deficiencies preclude the court from concluding that the ALJ's credibility determination is supported by substantial evidence and based on proper legal standards. The ALJ's determination regarding plaintiff's credibility is manifestly a central factor in the evaluation of plaintiff's mental impairments, which are, of course, subjective in nature. Accordingly, the deficiencies with respect to the ALJ's credibility determination are not harmless. They not only reinforce the need for remand arising from the ALJ's determination on Dr. Joseph's opinion, but themselves comprise an independent ground for remand of this case.
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 22) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 30) for judgment be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum and Recommendation. In making this ruling, the court expresses no opinion on the weight to be accorded the evidence on plaintiff's mental impairments or otherwise. That is a matter left for determination by the Commissioner.
IT IS ORDERED that the Clerk send copies of this Memorandum and Recommendation to counsel for the respective parties, who shall have until 6 January 2015 to file written objections. Failure to file timely written objections bars an aggrieved party from receiving a de novo review by the District Judge on an issue covered in the Memorandum and Recommendation and, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions accepted by the District Judge. Any response to objections shall be filed within 14 days after service of the objections on the responding party.
