MARY GORDON BAKER, Magistrate Judge.
Plaintiff Sequoya M. Rucker, through counsel, brought this action to obtain judicial review of an unfavorable final administrative decision denying benefits on her December 10, 2013 applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"). See Section 205(g) of the SSA, as amended, 42 U.S.C. Section 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons stated herein, the undersigned recommends that the Commissioner's decision be reversed and remanded for a new hearing.
The Plaintiff was born April 12, 1978, and was 35 years old on the alleged onset of disability date, April 21, 2008. (R. 201.) The Plaintiff filed for DIB and SSI on December 10, 2013. (R. 201, 206.) The Plaintiff claimed disability due to back problems, depression, and bipolar disorder. (R. 244.) The Plaintiff's claims were initially denied and denied on reconsideration. (R. 131-35, 140-47.) Following a hearing, the Administrative Law Judge ("ALJ") denied her claim on June 22, 2016. (R. 20-33.) The Plaintiff has exhausted her administrative remedies. The ALJ's decision is now the Commissioner's final action for purposes of judicial review. In making the determination that the Plaintiff is not entitled to benefits, the Commissioner adopted the following findings of the ALJ's June 22, 2016 Decision:
(R. 20-33.)
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act 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" twelve months. See 42 U.S.C. § 423(d)(1)(A) (definition used in the DIB context); 42 U.S.C. § 1382c(a)(3)(A) (definition used in the SSI context).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i). She must make a prima facie showing of disability by showing that she is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. See Grant, 699 F.2d at 191. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert ("VE"). Id. at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
The Plaintiff asserts the ALJ erred in the following eight ways (verbatim):
(Dkt. No. 15 at 1-2.)
The Plaintiff's argues that the ALJ failed to weigh or consider the opinions of David Tollison, Ph.D., a licensed clinical psychologist. (Dkt. No. 15 at 21-26.) The Plaintiff was first seen by Dr. Tollison in June of 2014 (R. 514), and he regularly examined and treated the Plaintiff through March of 2015. (R. 966.) The Commissioner argues that the opinions cited by the Plaintiff are not opinions but rather are only treatments notes and were properly considered by the ALJ. (Dkt. No. 19 at 5-10.) The undersigned finds that the ALJ failed to consider the opinion of Dr. Tollison.
The Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians.
The regulations direct that ALJs accord controlling weight to treating physicians' opinions that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 268 (4th Cir. 2017). If a treating source's opinion is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p.
The ALJ's consideration of a treating source's opinion does not end with a finding that it is not entitled to controlling weight. The ALJ must still proceed to weigh the treating physician's opinion and all other medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c). Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). These factors include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the source offering the opinion. Id.; 20 C.F.R. § 404.1527(c).
An ALJ has a duty to provide "specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record" and his explanation "must be sufficiently specific to make clear to any subsequent reviewers the weight [he] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p. The court should not disturb an ALJ's determination as to the weight to be assigned to a medical source opinion "absent some indication that the ALJ has dredged up `specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam); see also Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015).
Whether a claimant is disabled is an issue reserved to the Commissioner. Titles II & Xvi: Med. Source Opinions on Issues Reserved to the Comm'r, SSR 96-5P (S.S.A. July 2, 1996). A treating physician's opinion on such issues is not entitled to "any special significance," Sampson v. Colvin, No. 5:13-733, 2014 WL 3828902, at *11 (D.S.C. Aug. 4, 2014), nor "any heightened evidentiary value." Crocker v. Colvin, No. 1:15 1215, 2016 WL 1626591, at *16-17 (E.D. Va. Apr. 21, 2016).
The Plaintiff and the Commissioner disagree as to whether the statements made by Dr. Tollison were medical source opinions. As they applied at the time the Plaintiff's claims were filed, the regulations stated, "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). As stated above, the regulations generally require the Commissioner to give more weight to a treating physician's opinion because "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
The District Court for the Eastern District of North Carolina held the following regarding whether a statement in a medical record is a medical source opinion:
Love-Moore v. Colvin, No. 7:12-cv-104-D, 2013 WL 5366967, at *11 (E.D.N.C. Aug. 30, 2013), report and recommendation adopted, No. 7:12-cv-104-D, 2013 WL 5350870 (E.D.N.C. Sept. 24, 2013), aff'd sub nom. Moore v. Colvin, 584 F. App'x 155 (4th Cir. 2014).
The Plaintiff argues that Dr. Tollison's records include an opinion given on June 23, 2014, following an MMPI test.
R 532. The ALJ did not mention Dr. Tollison's statements from June 23, 2014, at all. As conceded by the Commissioner, the ALJ only generally cited to any of Dr. Tollison's records with no specific discussion of them other than a statement of the Plaintiff's diagnosis. (R. 27; Dkt. No. 19 at 7.)
The undersigned concludes that Dr. Tollison's statements given on June 23, 2014, are a medical source opinions under 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Dr. Tollison's statements are not merely reports of objective medical findings or the Plaintiff's subjective complaints. When taken as a whole, his statements are a summation of the Plaintiff's MMPI results and his opinions as to how the Plaintiff's mental conditions shown in the test would likely affect her functional capacity. Dr. Tollison clearly opined, "Test interpretation evidences an individual struggling with significant intensities of long-standing psychiatric symptoms that are of significant and impairing intensity." (R. 532.) Dr. Tollison's statements specifically opined that the Plaintiff was "[l]ikely to be highly impulsive in behavior and to overly react in anger and rage." (Id.) Additionally, Dr. Tollison noted that the Plaintiff was "likely to find difficult if not impossible to relax" and that the Plaintiff "lack[ed] effective coping skills and techniques." (Id.) Dr. Tollison supported these opinions with his summations of the MMPI.
The ALJ failed to address Dr. Tollison's opinion given June 23, 2014. The Commissioner argues that the ALJ properly considered the Plaintiff's mental health treatment records and cites to the evidence in the record that supports the ALJ's findings. (Dkt. No. 19 at 7-10.) This court may not reweigh evidence and determine what weight Dr. Tollison's opinion should be given. The regulations require the ALJ to make such determinations. 20 C.F.R. § 404.1527(c).
An ALJ must explain the weight afforded to medical opinions. See SSR 96-2p, 1996 WL 374188, *5 (July 2, 1996); SSR 96-6p, 1996 WL 374180, *1 (July 2, 1996); Ashmore v. Colvin, No. 0:11-cv-2865-TMC-PJG, 2013 WL 837643, *2 (D.S.C. Mar. 6, 2013) ("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"). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, 2013 WL 5350870, *2 (E.D.N.C. Sept. 24, 2013), aff'd, 584 Fed.Appx. 155 (4th Cir. Oct. 10, 2014). Remand may be appropriate where an ALJ has not provided good reasons for discounting the opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2); see, e.g., Stroup v. Apfel, 205 F.3d 1334, 2000 WL 216620, *6 (4th Cir. 2000); Ladson v. Astrue, No. 4:11-cv-2565-TER, 2013 WL 655971, *9 (D.S.C. Feb. 22, 2013) (remanding case for ALJ to address opinion of treating physician); Tomlin v. Colvin, 2014 WL 4162402, *6-7 (E.D.N.C. July 17, 2014) (same), adopted by, 2014 WL 4162783 (E.D.N.C. Aug. 20, 2014).
In the case at bar, Dr. Tollison's opinion was not acknowledged by the ALJ. Dr. Tollison was the Plaintiff's treating clinical psychologist. The ALJ failed to comply with 20 C.F.R. § 404.1527(c). Therefore, this court is unable to determine if the error would be harmless. Remand is required. See Mitchell v. Comm'r of Soc. Sec. Admin., No. 2:16-cv-3675-TMC-MGB, 2018 WL 704367, at *10 (D.S.C. Jan. 17, 2018), report and recommendation adopted sub nom. Mitchell v. Berryhill, No. 2:16-cv-3675-TMC, 2018 WL 689753 (D.S.C. Feb. 1, 2018). The undersigned recommends that this case be reversed and remanded for a new hearing.
The undersigned concludes that the ALJ additionally erred in assessing the Plaintiff's treating primary-care physician's opinion. The Plaintiff argues that the ALJ erred by assigning partial weight to the opinion of the Plaintiff's treating family practitioner, Dr. Robert Jackson.
Dr. Jackson was the Plaintiff's primary care physician beginning in June of 2014. (R. 519.) On April 13, 2016, Dr. Jackson filled out a four page questionnaire regarding the Plaintiff's functional capacity. (R. 1136-39.) Dr. Jackson noted that he had examined the Plaintiff "every 2-3 months." (R. 1136.) Dr. Jackson's questionnaire was wide ranging and included all of the Plaintiff's mental and physical limitations. Of note for this analysis, Dr. Jackson extensively noted the Plaintiff's headaches. Dr. Jackson stated that the Plaintiff had headaches with pain from her forehead to her neck. (Id.) Dr. Jackson stated that the Plaintiff was sensitive to light and sound and that her headaches ranged from mild to severe. (Id.) Dr. Jackson stated that the Plaintiff experienced vertigo, nausea/vomiting, photosensitivity, visual disturbances, mood changes, mental confusion/inability to concentrate, and loss of appetite due to her headaches. (Id.) Dr. Jackson wrote that the Plaintiff had headaches "2-3 times a week" lasting "6-8 hours." Dr. Jackson stated that when the Plaintiff had a headache, she would be unable to perform even basic work activities. (Id.) Dr. Jackson noted that the Plaintiff was on medications for her headaches, including oxycodone, which caused drowsiness. (R. 1137.)
In her assessment of Dr. Jackson's opinion, the ALJ failed to address the Plaintiff's headaches at all. In considering the six factors required by 20 C.F.R. § 404.1527(c), the ALJ only noted that Dr. Jackson was not a specialist, and found that his opinion was inconsistent with the longitudinal record. (R. 30.) The ALJ failed to note Dr. Jackson's significant treatment relationship with the Plaintiff. None of the ALJ's citations to the record related to the Plaintiff's headaches. (Id.) The ALJ failed to address or rebut Dr. Jackson's opinion regarding the Plaintiff's headaches.
As stated supra, the Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5; see also 20 CFR § 404.1527(c)(2). By failing to address Dr. Jackson's opinion regarding the Plaintiff's headaches, the ALJ failed to give sufficient "good reasons" for giving the opinion partial weight. Indeed, Dr. Jackson's medical records indicated that headaches, which at times worsened and occurred daily, were an ongoing malady for the entire course of her treating relationship with Dr. Jackson. (R. 519, 616, 628, 631, 651, 1109.) The Plaintiff received "excellent migraine control" from Topamax, but had to stop taking it due to an allergic reaction, and her headaches continued.
The undersigned additionally concludes that the ALJ did not "build a logical bridge" between the evidence of record and her residual functional capacity ("RFC") analysis regarding the Plaintiff's limitations in Concentration, Persistence, and Pace. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). In Mascio v. Colvin, the Fourth Circuit held that "an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work." Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). The court reasoned that "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. The Mascio court noted:
780 F.3d at 638. However, when an ALJ fails to give an explanation, remand is required. Id.
At step three in the sequential process, the ALJ found that the Plaintiff had moderate difficulties with "concentration, persistence, or pace." (R. 24.) The ALJ then made the following general statement regarding the Plaintiff's difficulties with concentration, persistence, or pace:
(R. 25.) In the Plaintiff's RFC, the ALJ limited the Plaintiff to "simple routine tasks performed for two hours at a time." (R. 26.)
"The ALJ must both identify evidence that supports his conclusion and `build an accurate and logical bridge from [that] evidence to his conclusion.'" Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). In the case at bar, the ALJ failed to explain how limiting the Plaintiff to "simple routine tasks performed for two hours at a time" (R. 26) sufficiently accounted for her finding that the Plaintiff had moderate difficulties with "concentration, persistence, or pace." (R. 24.) The ALJ failed to build any bridge between the two. The ALJ's explanation that "the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the `paragraph B' mental function analysis" (R. 25) does not build a bridge. It is merely a conclusory statement by the ALJ. It does not actually link any evidence to the ALJ's finding that the Plaintiff could perform simple routine tasks for up to two hours at a time. The undersigned concludes that the ALJ failed to sufficiently explain how the Plaintiff's moderate limitations with concentration, persistence, and pace would allow her to complete simple routine tasks for up to two hours at a time.
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not address the multiple remaining issues as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). However, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegation of error raised by the Plaintiff.
It is therefore
IT IS SO RECOMMENDED.
