JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Timothy Lee Evans, Sr. ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner") denying his application 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 applications for DIB and SSI on 22 August 2012, alleging a disability onset date of 1 April 2010. Transcript of Proceedings ("Tr.") 11. The applications were denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 11. On 18 March 2014, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff and a vocational expert testified. Tr. 112-41. The ALJ issued a decision denying plaintiff's claim on 29 May 2014. Tr. 11-20.
Plaintiff timely requested review by the Appeals Council. Tr. 111. Plaintiff submitted numerous medical records to the Appeals Council for the first time. See Tr. 25-110; 622-80. On 12 September 2015, the Appeals Council admitted a portion of the records (Tr. 622-80), which cover the period 5 June 2013 to 2 June 2014 (Tr. 2, 6); did not admit the remaining portion (Tr. 25-110), which cover the period 13 June 2014 to 29 April 2015 and the Appeals Council found to relate to a period later than that at issue (Tr. 2); and denied the request for review (Tr. 1). At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 30 September 2015, plaintiff commenced this proceeding for judicial review, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Am. IFP Mot. (D.E. 4); Order Allowing Am. IFP Mot. (D.E. 5); Compl. (D.E. 6).
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:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
Plaintiff was 42 years old on the alleged onset date of disability and 45 years old on the date of the hearing. See, e.g., Tr. 19 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 19 ¶ 8) and past relevant work as a retail store manager, automobile service station manager, and automobile mechanic (Tr. 19 ¶ 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 onset date of disability. Tr. 13 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: coronary artery disease, diabetes mellitus, degenerative disc disease, and obesity. Tr. 13 ¶ 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. 14 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform light work subject to various limitations:
Tr. 14 ¶ 5; see 20 C.F.R. §§ 404.1567(b) (defining light work); 416.967(b) (same).
Based on her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform his past relevant work. Tr. 19 ¶ 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 weight tester, cuff folder, and dowel inspector.
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.
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 contends that the ALJ's decision should be reversed and DIB and SSI awarded or, alternatively, that this case be remanded for a new hearing, on the grounds that the ALJ erred in finding that he did not satisfy Listings 1.04 and 4.04, not giving more weight to the assessment of plaintiff by consulting examining physician Gonzalo A. Fernandez, M.D., and omitting various limitations from her RFC determination. The court will address each of plaintiff's contentions below. Before doing so, however, the court will review the ALJ's credibility determination. Although plaintiff does not directly challenge the ALJ's determination that plaintiff's allegations are not fully credible, he relies upon his testimony for many of his contentions. The court therefore deems it appropriate at the outset of its analysis of the ALJ's decision to review her credibility determination. The court's analysis is based on consideration of the record as supplemented by plaintiff's submissions to the Appeals Council, both those submissions formally admitted into the record by the Appeals Council and those not formally admitted but included in the record.
As previously noted, this court is not permitted to make credibility assessments, but must determine if the ALJ's credibility assessment is supported by substantial evidence. Craig, 76 F.3d at 589. The ALJ's assessment involves a two-step process. First, the ALJ must determine whether plaintiff's medically documented impairments could cause plaintiff's alleged symptoms. Id. at 594-95. Next, the ALJ must evaluate plaintiff's statements concerning those symptoms. Id. at 595. The ALJ's "`decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record.'" Dean v. Barnhart, 421 F.Supp.2d 898, 906 (D.S.C. 2006) (quoting Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2 (2 July 1996))
It is true, of course, that "[a] party seeking benefits need not provide objective medical evidence to corroborate his allegations of pain." Hall v. Astrue, No. 2:11-CV-22-D, 2012 WL 3727317, at *2 (E.D.N.C. 28 Aug. 2012). "However, an ALJ may discredit a party's allegations of pain to the extent the allegations are inconsistent with (1) objective medical evidence of the underlying impairment or (2) the pain reasonably expected to be caused by the underlying impairment." Id. (citing Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006)); Craig, 76 F.3d at 595. In other words, an ALJ is not "obligated to accept the claimant's statements at face value; rather, the ALJ `must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.'" Hyatt v. Colvin, No. 7:14-CV-8-D, 2015 WL 789304, at *11 (E.D.N.C. 24 Feb. 2015) (quoting Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2). Specifically, the Regulations require the ALJ to consider "all of the available evidence," which includes a claimant's history; the signs and laboratory findings (i.e., objective medical evidence); statements about the effect of symptoms from the claimant, treating or nontreating sources, and other persons; and medical opinion evidence. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
After a thorough description of plaintiff's testimony and a detailed review of the medical evidence, the ALJ determined at step one that plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 18 ¶ 5. However, at the second step of the credibility assessment, the ALJ found that plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Tr. 18 ¶ 5.
The ALJ summarized the reasons for her credibility determination as follows:
Tr. 17-18 ¶ 5. Substantial evidence supports the ALJ's determination, including evidence discussed below in connection with plaintiff's contentions.
As can be seen, the ALJ took into account in her credibility determination plaintiff's failure to seek medical care. He testified that he is currently without insurance or income to pay for care. Tr. 124. The court is aware that a claimant cannot be penalized for not seeking care when he lacks the ability to pay for it. See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). Plaintiff does not contend that the ALJ ran afoul of this prohibition, although she does mention the lack of imaging of plaintiff in connection with the ALJ's determination on Listing 1.04, as discussed below. The court finds that the ALJ did not violate this prohibition.
Among other reasons, the periods over which plaintiff did not obtain care include times when the record shows he did have income. See, e.g., Tr. 368 (work history report). The record also shows that plaintiff did have some access to health care during at least portions of the alleged period of disability. See, e.g., Tr. 581 (plaintiff's report to Dr. Fernandez on 19 Nov. 2012 that "[c]urrently, he follows with his primary care doctor for his diabetes and sees him every 3 months"). In addition, the record substantiates that, as the ALJ found, plaintiff has an extended history of failure to follow physicians' instructions and to otherwise tend to his health care irrespective of ability to pay. Therefore, even assuming lack of income, that fact might not account for his not seeking care. Moreover, as the ALJ notes, he is not a reliable reporter as to when he has income, having failed to report on his taxes income he had received under the table for several years. See Tr. 121-22. Further, plaintiff's not seeking medical care is only one of numerous factors underlying the ALJ's credibility determination. Substantial evidence would support this determination even if the findings regarding his failure to seek treatment were disregarded. The court concludes that the ALJ's credibility determination was proper.
The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. §§ 404.1525(a), 416.925(a). Therefore, if a claimant's impairments meet a listing, that fact alone establishes that the claimant is disabled. Id. §§ 404.1520(d), 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Soc. Sec. Ruling 83-19, 1983 WL 31248, at *2 (1983). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Even if an impairment does not meet the listing criteria, it can still be deemed to satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. §§ 404.1525(c)(5), 416.925(c)(5). To establish such medical equivalence, a claimant must present medical findings equal in severity to all the criteria for that listing. Sullivan, 493 U.S. at 531; 20 C.F.R. §§ 404.1526(a) (medical findings must be at least equal in severity and duration to the listed criteria), 416.926(a) (same). "A claimant cannot qualify for benefits under the `equivalence' step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Sullivan, 493 U.S. at 531.
"[W]hen an ALJ finds that a claimant has a severe impairment and the record contains evidence of related `symptoms [that] appear to correspond to some or all of the requirements of [a listing, the ALJ must] . . . explain the reasons for the determination that [the claimant's severe impairment] did not meet or equal a listed impairment.'" Jones ex rel. B.J. v. Astrue, No. 1:09CV45, 2012 WL 1267875, at *2 (M.D.N.C. 16 Apr. 2012) (quoting Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)), rep. & recomm. adopted, Ord. (22 May 2012) (D.E. 19); Money v. Astrue, No. 1:08cv895, 2011 WL 3841972, at *8 (M.D.N.C. 26 Aug. 2011) ("The ALJ also may not include a conclusory statement that the claimant does not have an impairment or combination of impairments that meets a listed impairment." (citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989))); cf. Kelly v. Astrue, No. 5:08-CV-289-FL, 2009 WL 1346241, at *5 (E.D.N.C. 12 May 2009) ("[T]he ALJ is only required to explicitly identify and discuss relevant listings of impairments where there is `ample evidence in the record to support a determination' that an impairment meets or medically equals a listing." (citations omitted)).
Listing 1.04 relates to spinal disorders. It provides:
Listing 1.04. "Inability to ambulate effectively" generally means "having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." Listing 1.00B2b(1). Thus, to satisfy Listing 1.04, a claimant must satisfy the diagnostic definition and the criteria in at least one of paragraphs A, B, or C.
After making the general finding that plaintiff's impairments do not meet or medically equal any listing, the ALJ found that "[t]he record does not show that the claimant has a spinal disorder characterized by nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis, as required by Medical Listing 1.04," referring to paragraphs A, B, and C, respectively. Tr. 14 ¶ 4. The ALJ does not address the diagnostic definition in Listing 1.04. Plaintiff does not specify which paragraph of this listing he contends he satisfies, although in summarizing the listing he refers to the criteria of only paragraphs A and C. In any event, substantial evidence supports the ALJ's determination that his impairments do not satisfy the criteria in any of the three paragraphs.
As to the paragraph A criteria, the medical records do not appear to contain any diagnosis of plaintiff for nerve root compression. See Listing 1.04A. Nor has plaintiff alleged the existence of any such diagnosis. He therefore does not meet Listing 1.04A. Plaintiff has also failed to cite to evidence demonstrating that his limitations are equivalent in severity to the criteria of Listing 1.04A.
With respect to the paragraph B criteria, the medical records also do not appear to contain any diagnosis of plaintiff for arachnoiditis. See Listing 1.04B. Again, plaintiff did not identify any such diagnosis in the record. As with Listing 1.04A, he does not cite evidence showing that his limitations are equivalent to the criteria specified in Listing 1.04B.
Regarding the paragraph C criteria, there also appears to be no diagnosis for, and plaintiff does not allege that he has, spinal stenosis. As to plaintiff's ability to ambulate, there is no evidence that he used or was prescribed a cane or other assistive device. Indeed, in a work history report dated 13 December 2013, plaintiff reported that he did not use a cane, crutches, or a walker and had not been prescribed any of them. Tr. 369. In addition, Dr. Fernandez stated in his report on his examination of plaintiff that "[t]here are no assistive devices." Tr. 585.
Plaintiff argues that his back condition meets or medically equals Listing 1.04 on the basis of his testimony that he can sit for only 15 to 20 minutes at a time, stand for only 15 to 25 minutes at a time, and walk for only 10 to 15 minutes at a time. Tr. 125-26. But, as discussed, the ALJ properly found plaintiff's testimony not fully credible. Tr. 18 ¶ 5.
Specific evidence supporting the ALJ's rejection of plaintiff's testimony regarding the need to take breaks includes the 7 January 2013 assessment of nonexamining state agency consulting physician E. Woods, M.S., M.D. that did not find plaintiff to have the alleged need to take breaks. Tr. 168-71, 182-85. The ALJ gave Dr. Woods' opinions great weight subject to one exception not relevant here.
Plaintiff also argues that he was unable to afford the imaging that can be used to confirm spinal arachnoiditis and that must be used to establish lumbar spinal stenosis, citing his testimony to that effect. Tr. 125; see also Listing 1.04A, B. The Regulations, however, contemplate the situation in which a claimant's lack of treatment prevents him from showing that he meets a listing. "Even though an individual who does not receive treatment may not be able to show an impairment that meets the criteria of one of the musculoskeletal listings, the individual may have an impairment(s) equivalent in severity to one of the listed impairments or be disabled based on consideration of his or her residual functional capacity (RFC) and age, education and work experience." Listing 1.04H3. Therefore, even if plaintiff's testimony that he could not afford imaging were credited, it would not establish that the ALJ's determinations on Listings 1.04B and 1.04C were improper. Moreover, the ALJ's decision makes clear that, as this regulation envisions, the ALJ did consider whether plaintiff's back impairments were medically equivalent to Listing 1.04 and did consider them in determining plaintiff's RFC. See Tr. 15 ¶ 5; 16 ¶ 5; 18 ¶ 5.
Plaintiff has therefore failed to demonstrate that the ALJ erred in her determination that he did not satisfy the paragraph A, B, and C criteria of Listing 1.04. The court accordingly rejects plaintiff's challenge to the ALJ's determination on Listing 1.04.
Listing 4.04 relates to ischemic heart disease, which is narrowing or obstruction of coronary arteries interfering with blood flow to heart muscle. Listing 4.00E1. It requires symptoms due to myocardial ischemia (i.e., reduced blood flow to the heart)
The ALJ's determination that plaintiff did not satisfy any Listings encompasses, of course, the criteria in all three paragraphs of Listing 4.04. The ALJ explained her determination with respect to only paragraph C, stating:
Tr. 14 ¶ 4.
Substantial evidence supports the ALJ's determination regarding Listing 4.04, including specifically paragraph C. Such evidence includes that reviewed by the ALJ in her decision substantiating that plaintiff's coronary artery disease is not disabling. She stated:
Tr. 16 ¶ 5.
In challenging the ALJ's determination, plaintiff points to his diagnosis with two totally occluded vessels in March 2012. But this fact alone does not satisfy Listing 4.04C; there are additional criteria to satisfy. Further, as indicated, the ALJ's decision makes clear that she considered this diagnosis in her assessment of plaintiff's coronary artery disease.
Plaintiff also cites to the determination by consulting examining psychiatrist Assad Meymandi, M.D., Ph.D., in the report on his 18 December 2012 evaluation of plaintiff that he "may have some anxiety as the result of his recent cardiac condition." Tr. 592. Not only is this finding indeterminate—plaintiff "may have some anxiety"—but Dr. Meymandi did not find plaintiff to have any mental impairments that would impose work-related limitations. Tr. 13-14 ¶ 3 (ALJ's recitation of this opinion); 593 (Dr. Meymandi's statement that plaintiff "is certainty capable of making occupational adjustment"). Similarly, nonexamining state agency consulting psychologist Tovah M. Wax, Ph.D. found in her 10 January 2013 assessment of plaintiff that he had no severe mental impairments (Tr. 166-67, 180-81), an assessment to which the ALJ gave great weight as consistent with Dr. Meymandi's evaluation (Tr. 14 ¶ 3). In any event, plaintiff's psychological response to his coronary artery disease is outside the scope of Listing 4.04.
Lastly, plaintiff points to a one-page form signed by cardiologist Lawrence Liao, M.D. Tr. 81. Plaintiff submitted this form for the first time to the Appeals Council. In the form, Dr. Liao indicated that plaintiff had Class III cardiac functional capacity, signifying that he had cardiac disease "resulting in marked limitation of physical activity." Tr. 81. But this statement is dated 29 April 2015,
Moreover, the weight properly accordable to Dr. Liao's determination is limited by the fact that it is unsupported by any evidence or other explanation. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Dr. Liao simply circled which of the four functional levels listed and described on the form he apparently deemed applicable.
The court concludes that the ALJ's determination regarding Listing 4.04 is proper. It accordingly rejects plaintiff's challenge to this determination.
"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. 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.").
The same basic standards that govern evaluation of the opinions of treating medical sources and explanation of the weight given such opinions apply to nonexamining sources. See 20 C.F.R. §§ 404.1527(e), 416.927(e); Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). More weight is generally given to the opinion of a treating source than to the opinion of a nonexamining source. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Under appropriate circumstances, however, the opinions of a nonexamining source may be given more weight than those of a treating source. See Soc. Sec. R. 96-6p, 1996 WL 374180, at *3 (2 July 1996).
As noted, consulting physician Dr. Fernandez performed an examination of plaintiff on 19 November 2012. See Tr. 581-85. The ALJ described Dr. Fernandez's report on the examination at length in her decision as follows:
Tr. 16-17 ¶ 5.
The ALJ then stated that she gave little weight to Dr. Fernandez's "opinion":
Tr. 17 ¶ 5. The court deems the opinion the ALJ was addressing to be the opinion that plaintiff needed frequent breaks because her explanation relates to only that opinion.
The reasons cited by the ALJ for attributing little weight to this opinion are proper and supported by substantial evidence. Dr. Fernandez did not, in fact, specify the frequency with which plaintiff would need breaks or give reasons for this opinion. Plaintiff does not directly address the ALJ's assessment of this opinion.
Plaintiff does argue that the ALJ should have given substantial weight to Dr. Fernandez's determinations regarding plaintiff's purported postural and communicative limitations. He reads the ALJ's decision as stating that she gave them little weight. As noted, though, the court finds that the ALJ's express attribution of little weight with respect to Dr. Fernandez's assessment applied solely to his opinion regarding plaintiff's purported need to take breaks. The ALJ did not expressly address the weight accorded Dr. Fernandez's determinations regarding plaintiff's purported postural and communicative limitations, although it is clear from her recitation of them that she considered them. Nonetheless, the court finds no harmful error. Specifically, plaintiff has not shown that without the errors he alleges it is reasonably possible that the ALJ would have reached a different outcome on the issue of disability. See, e.g., Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)); Huffman v. Colvin, No. 1:10CV537, 2013 WL 4431964, at *4 & n.7, 7 (M.D.N.C. 14 Aug. 2013); Presnell v. Colvin, No. 1:12-CV-299-FDW, 2013 WL 4079214, at *6 (W.D.N.C. 13 Aug. 2013); see also Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (noting that an error is harmless when, among other circumstances, the ALJ would have reached the same result absent the error).
One reason is that these determinations by Dr. Fernandez are not expressed as definitive judgments regarding plaintiff's purported impairments. Dr. Fernandez stated, in his own words, merely that "[t]here may be postural limitations to bending, stooping, crouching limited by his chronic low back pain" and that "[t]here may be communicative limitations limited by his complaints of poor memory and focus issues." Tr. 585 (emphasis added). Thus, Dr. Fernandez did not find that plaintiff actually had these limitations, but only that it was a possibility that he did. Dr. Fernandez does express other determinations in definitive terms (e.g., "There were no manipulative limitations . . . ."), substantiating that he intended the uncertainty expressed in his determinations on postural and communicative limitations. In addition, Dr. Fernandez did not specify the extent of these possible postural limitations. Given these circumstances, it is unclear what an express attribution of weight to these determinations, particularly the attribution of significant weight as plaintiff advocates, would have signified or how it would have facilitated court review of the ALJ's decision.
Ultimately, of course, the ALJ did include in her RFC determination postural limitations of the type Dr. Fernandez mentioned—namely, limitations of plaintiff to only occasional stooping (i.e., bending at the waist) and frequent crouching (i.e., bending at the knees) and crawling. Tr. 14 ¶ 5. Substantial evidence supports the inclusion of these postural limitations, among it, the opinion of nonexamining state agency consulting physician Dr. Woods that plaintiff had such limitations. See Tr. 169, 183.
The ALJ did not include any communicative limitations in her RFC determination. Dr. Fernandez grounded his determination regarding communicative limitations on plaintiff's purported poor memory and focus issues. Dr. Fernandez is not a psychiatrist and this determination is arguably outside the scope of his area of specialization. See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). In any event, substantial evidence supports the ALJ's omission of communicative limitations from her RFC determination. Such evidence includes the psychological evaluation of plaintiff by Dr. Meymandi, which noted no such limitations and found specifically that plaintiff's memory was intact. Tr. 592, 593. Additional supporting evidence is the assessment by Dr. Woods, which also found no communicative limitations. Tr. 170, 184.
Finding that the ALJ's handling of Dr. Fernandez's assessment contains no harmful error, the court therefore rejects plaintiff's challenge to this portion of the ALJ's decision.
Plaintiff argues that the ALJ failed to include in her RFC determination limitations that preclude him from performing any work. The court disagrees.
One limitation plaintiff cites is his purported need to change position about every 20 minutes. In response to a hypothetical, the vocational expert testified that this limitation would preclude plaintiff from performing any work. Tr. 137-38. Plaintiff claims he has this limitation on the basis of his own testimony and Dr. Fernandez's opinion that he does. See Tr. 125-26; 585.
As discussed previously, however, the ALJ properly found plaintiff's testimony regarding the severity and limiting effects of his impairments not fully credible and discounted this opinion by Dr. Fernandez. As also discussed, the ALJ's determination that plaintiff does not have this alleged limitation is otherwise supported by substantial evidence. The ALJ therefore did not err by excluding this limitation from plaintiff's RFC.
The other principal limitation plaintiff argues the ALJ wrongfully omitted from her RFC determination is his purported need to be off task from work more than 20 percent of the workday due to drowsiness or pain. The vocational expert testified that such a limitation would preclude all work by plaintiff. Tr. 139. Again, plaintiff bases this purported limitation on his own testimony. See Tr. 129.
As with the purported need to change position, the ALJ did not err in rejecting this testimony. The ALJ's exclusion of this alleged limitation is otherwise supported by substantial evidence.
Plaintiff cites to other purported limitations not included in the ALJ's RFC determination, but again relies on his own testimony regarding the existence and severity of these limitations. For the same reasons discussed with respect to plaintiff's purported limitations relating to breaks and off-task time, the ALJ did not err in her handling of these additional alleged limitations in determining plaintiff's RFC. For this and the other reasons stated, plaintiff's challenge to the ALJ's RFC determination fails.
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 18) for judgment on the pleadings be GRANTED, plaintiff's motion (D.E. 16) for judgment on the pleadings be DENIED, and the Commissioner's final decision be AFFIRMED.
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 4 January 2017 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 filing of the objections.
