JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Terry Lamont Riggins ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("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 applications for DIB and SSI on 8 May 2013, alleging a disability onset date of 3 January 2013. Transcript of Proceedings ("Tr.") 28. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 28. On 20 August 2015, a hearing was held before an administrative law judge ("AU"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 43-68. The All issued a decision denying plaintiff's claims on 16 September 2015. Tr. 28-37. Plaintiff requested review by the Appeals Council. See Tr. 20-24. On 3 October 2016, it denied the request. Tr. 1.
At that time, the decision of the All became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
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 AU must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
The All found that plaintiff was 31 years old on the alleged onset date of disability and 34 years old on the date of the hearing. See Tr. 35 ¶ 7; 47. The ALJ found that plaintiff has at least a high school education (Tr. 36 ¶ 8) and that his past relevant work included employment as a cook (Tr. 35 ¶ 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 date of alleged onset of disability, 3 January 2013. Tr. 30 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: "a history of gunshot wound, degenerative scoliosis, and a history of ventral incisional hernia with repair." Tr. 30 ¶ 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. 31 ¶4.
The ALJ next determined that plaintiff had the RFC to perform a sedentary work with limitations:
Tr. 32 ¶ 5.
Based on her determination of plaintiff's RFC, the AU found at step four that plaintiff was unable to perform his past relevant work. Tr. 356. At step five, the All 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 order clerk for food and beverages, and charge account clerk. Tr. 36 ¶ 10. The All accordingly concluded that plaintiff was not disabled from the date of the alleged onset of disability, 3 January 2013, through the date of the decision, 16 September 2015. Tr. 37 ¶ 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. 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); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
Plaintiff contends that this case should be remanded for the award of benefits or, in the alternative, a new hearing on the principal grounds that the ALJ erred in his assessment of plaintiffs credibility; evaluation of the opinions of consultative examining physician Essam S. Eskander, M.D.; and assessment of the opinions of a friend of plaintiffs. Because the court finds that the ALJ's evaluation of Dr. Eskander's opinions is dispositive of this appeal, its analysis will focus on that ground.
"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 AU 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 AU 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, namely, the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 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 All must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
The factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") not given controlling weight also apply to the opinions of providers who are deemed to be at a different professional level, or so-called "other sources," including nurse practitioners. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *2, 4 (9 Aug. 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (listing nurse practitioners and therapists among "other sources"). As with opinions from physicians and psychologists, the All must explain the weight given opinions of "other sources" and the reasons for the weight given. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6; Napier, 2013 WL 1856469, at *2. The fact that an opinion is from an acceptable medical source may justify giving that opinion greater weight than an opinion from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.
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.").
Dr. Eskander of Chadbourn Family Practice Center performed a consultative examination of plaintiff for purposes of his disability claims on 25 February 2014.
Tr. 35 ¶ 5.
Prior to presenting this summary, in her discussion of the medical source opinion of record, the All states that she gave Dr. Eskander's opinions "great weight":
Tr. 34 ¶ 5.
Plaintiff contends that the AU erred in not adequately explaining her assessment of Dr. Eskander's opinions, specifically, her reasons for not attributing weight to Dr. Eskander's opinions that were inconsistent with the ALJ's conclusions. The court agrees that the ALJ erred.
The ALJ did not include with her statement on the weight she was giving Dr. Eskander's opinions any explanation of this determination. Nor did she present any such explanation elsewhere. It is not, of course, the court's role to attempt to cobble together an explanation the ALJ herself did not provide. See, e.g., Greene v. Colvin, No. 5:15-CV-243-FL, 2016 WL 4147682, at *4 (E.D.N.C. 20 July 2016) ("Fourth Circuit precedent `makes it clear that it is not [the court's] role to speculate as to how the All applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record.[']" (quoting Fox v. Colvin, 632 Fed. App'x 750, 755 (4th Cir. 2015) (per curiam))), mem. & recomm. adopted, 2016 WL 4148309 (4 Aug. 2016); Pushkal v. Colvin, No. 5:12-CV-223-FL, 2013 WL 4828560, at *7 (E.D.N.C. 30 Aug. 2013) ("[I]t is not the court's role to speculate about . . . what the [ALF s] intended but unexpressed meaning might be."), mem. & recomm. adopted, 2013 WL 4828560, at *7 (10 Sept. 2013).
The Commissioner argues that the All based her determination on the same reasons for her attribution of "great weight" to the opinions of the nonexamining state agency consultants. The All presented her assessment of the state agency consultants' opinions in the paragraph immediately following her statement of the weight she was giving Dr. Eskander's opinions. She stated:
Tr. 34 ¶ 5 (emphasis added). The Commissioner apparently reads the italicized terminology as tying the reasons stated to the assessment of Dr. Eskander's opinions. The court finds this analysis unconvincing. The terminology falls far short of making clear that these reasons apply to the ALJ's assessment of Dr. Eskander's opinions. Certainly, if the ALJ had intended the same reasons to apply to her assessment of Dr. Eskander's opinions, she could have stated so more forthrightly.
The All also failed to make clear the opinions of Dr. Eskander to which her assessment applies. In the sentence stating her assessment, while she does refer to several opinions of Dr. Eskander, she does so in describing him as "a consultative examiner, who found the claimant did not require an assistive device and had dexterity and sensation within normal limits." Tr. 34 ¶ 5. She does not expressly state that these are the opinions to which she is giving great weight.
It is unclear why she would give an opinion on dexterity great weight because plaintiff's dexterity does not appear to be at issue in this case. Also, the ALJ's determination that Dr. Eskander "found the claimant did not require an assistive device" appears to be based on his handwritten notation ostensibly reading "no assistive device used" in connection with the evaluation of plaintiff's range of motion, gait, and station. Tr. 464. The basis for the ALJ's interpreting this seeming observation by Dr. Eskander as a finding by him that plaintiff did not require an assistive device warrants explanation. This is particularly so since the seeming readiness of the AU to read an underlying medical judgment into Dr. Eskander's notation regarding plaintiff's non-use of a cane contrasts with her seeming reticence to do so with respect to a notation in a 2 June 2015 office treatment note regarding plaintiff's use of a cane. That note read "Walking cane" and appeared in the "Plan" section of the note, in which the medication being prescribed was also listed. Tr. 487. In this instance, the AU discounted the notation by stating that "no other information regarding [the cane's] necessity was given." Tr. 30 ¶ 3; see also Tr. 35 ¶ 5 ("While a walking cane was noted, no medical necessity for this aide was reported.").
In addition, while Dr. Eskander did note that plaintiff had "[s]ensation intact in the upper and lower extremities," he also stated as one of his four concluding impressions "[l]eft foot paresthesias." Tr. 467. This finding by Dr. Eskander is substantiated by, among other evidence, plaintiff's testimony that he had "numbness or tingling" in his left foot. Tr. 52. In any event, the ALJ did not address at all Dr. Eskander's finding of left foot paresthesias. She thereby did not reconcile her attribution of great weight to the finding of "intact sensation" with the seemingly contradictory finding on paresthesias.
Dr. Eskander's opinion regarding plaintiff's left foot paresthesias is not the only opinion of his as to which the ALJ failed to explain the weight she accorded. In addition, the AU did not address in her statement of the weight she accorded Dr. Eskander's opinions his impression that plaintiff had abdominal pain. See Tr. 467.
Perhaps most notably, the ALJ also failed to address what weight she gave Dr. Eskander's impression that plaintiff had left hip pain. Tr. 467. Plaintiff claimed in his testimony that left hip pain is the principal impairment that prevents him from working, as the ALJ herself recognized in her decision. Tr. 33 ¶ 5 (referencing Tr. 51). While in her separate summary of Dr. Eskander's evaluation the ALJ mentions his determination that plaintiff had "decreased range of motion of his left lower extremity," she does not mention it in her statement regarding the weight she accorded his opinions. Tr. 35 ¶ 6. The diminished range of motion Dr. Eskander found appears to have been substantial. He reported that in flexion plaintiffs range of motion of his left hip was 10 degrees and that in extension, abduction, adduction, internal rotation, and external rotation the range of motion was 0 degrees.
Because of the ALJ's failure to make clear the weight she accorded Dr. Eskander's opinions, as required, she failed to build "`an accurate and logical bridge from the evidence to [the] conclusion[s]'" she reached regarding plaintiffs ability to work. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). The court is thereby precluded from conducting a meaningful substantial-evidence review of the ALJ's decision, and remand is required. Id. at 190-91 (holding that the ALJ's explanation that he gave "limited weight" to medical opinions because "the objective evidence or the claimant's treatment history did not support" them and similarly cursory explanations of other opinions precluded meaningful substantial-evidence review (internal quotation marks omitted)) (citing Radford, 734 F.3d at 295); Fox, 632 F. App'x at 756 (holding that explanation by ALJ that he gave "less weight" to medical opinions because they were "not well-supported by the medical record" was so "cursory and conclusory" as to preclude meaningful review and remanding case (internal quotation marks omitted)).
The need for remand here is enhanced because the opinions of Dr. Eskander not addressed by the ALJ include one, as noted, on the impairment that plaintiff contends is the most disabling— left hip pain. Further, the ALJ stated that she gave the opinions of Dr. Eskander, whatever opinions it was that she actually assessed, "great" weight, as opposed to, say, "some" or "little" weight. Tr. 34 ¶ 5. The clear implication is that the opinions to which she was referring played a significant role in her analysis of plaintiffs claims. Of course, Dr. Eskander's status as a physician and his having examined plaintiff tends, of course, under the Regulations to lend weight to his opinions. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1); Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.
In addition, according to the ALJ's decision, the opinions of Dr. Eskander comprise a significant portion of the medical source opinions in the record. Of the treating source opinion, she states simply: "I note that none of the claimant's treating physicians have offered any medical opinion that the claimant has disabling impairments." Tr. 34 ¶ 5. The only other medical source opinion she addresses as such is the opinions of the state agency nonexamining consultants, as discussed above. See Tr. 34 ¶ 5.
Finally, the All ultimately found plaintiff to have the RFC to perform work at the lowest exertional level, the sedentary level, with limitations. See Tr. 32 ¶ 5. Proper assessment of Dr. Eskander's opinions could conceivably have resulted in a more restrictive RFC determination, including a different assessment of plaintiffs credibility underlying the RFC determination, and thereby a different outcome of this case. See, e.g., Lamb v. Berryhill, No. 2:16-CV-56-FL, 2017 WL 3332919, at *15 (E.D.N.C. 6 July 2017), mem. & recomm. adopted, 2017 WL 3325075 (3 Aug. 2017); Garner v. Astrue, 436 Fed. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).
For the foregoing reasons, IT IS RECOMMENDED that plaintiffs motion (D.E. 15) 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) for further proceedings consistent with this Memorandum and Recommendation.
In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case. These are 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 5 February 2018 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.
