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Bishop v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

August 2, 2016

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


          Robert S. Ballou United States Magistrate Judge

         Plaintiff Jeffrey Bishop (“Bishop”) challenges the final decision of the Commissioner of Social Security (“Commissioner”) determining that he was not disabled and therefore not eligible for disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433. Bishop asserts that the ALJ erred by failing to properly evaluate and weigh the opinions of two mental health consultative examiners.

         This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g). This case is before me by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). The parties have fully briefed all issues and the case is now ripe for decision. I have held a hearing and have reviewed the record, the applicable law, and the papers submitted. I conclude that the ALJ failed to adequately explain the weights he assigned to the mental health evaluators’ opinions. As such, I GRANT in part Bishop’s Motion for Summary Judgment (Dkt. No. 16), and DENY the Commissioner’s Motion for Summary Judgment. Dkt. No. 19. This case shall be REMANDED to the ALJ for further consideration consistent with this memorandum opinion.


         This court limits its review to a determination of whether substantial evidence exists to support the Commissioner’s conclusion that Bishop failed to demonstrate that he was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).


         Bishop filed for DIB on March 1, 2011, claiming that his disability began on December 2, 2010.[2] R. 382. Bishop claimed that he was disabled due to bi-polar disorder, migraine headaches, and attention deficit hyperactivity disorder. R. 386. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 81-98; 101-20. On January 22, 2013, ALJ Jeffrey Schueler held a hearing to consider Bishop’s disability claim. R. 28-78. Bishop was represented by an attorney at the hearing, which included testimony from vocational expert Ashley Wells. Id. On February 1, 2013, the ALJ entered an opinion denying Bishop’s application for benefits. R. 121-32. Bishop requested review by the Appeals Council, and on October 9, 2013, the Appeals Council issued a notice remanding Bishop’s case to the ALJ for further consideration. R. 137-41. Specifically, the Appeals Council directed the ALJ to evaluate Bishop’s mental impairments further, consider Bishop’s RFC “during the entire period . . . and provide rationale with specific references to evidence of record in support of assessed limitations . . . evaluate the nontreating source opinion . . . explain the weight given to such opinion evidence” and, if necessary, expand the record through the vocational expert to explain the extent the identified impairments have eroded Bishop’s occupational base. R. 139. The ALJ held a second hearing on April 17, 2014 at which Bishop and vocational expert Dr. Gerald Wells testified. R. 55-78.

         On May 23, 2014, the ALJ entered his decision analyzing Bishop’s claim under the familiar five-step process[3] and denying his claim for benefits. R. 11-22. The ALJ found that Bishop suffered from the severe impairments of attention deficit hyperactivity disorder, depression, and anxiety. R. 14. The ALJ found that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 14. The ALJ further found that Bishop retained the RFC to perform work at all exertional levels with non-exertional limitations, including performing only simple, routine, repetitive tasks in a low-stress job with only occasional interaction with coworkers or the public.[4] R. 16. Bishop should be expected to be off-task up to ten percent of a workday in addition to his regularly scheduled breaks. Id. The ALJ determined that Bishop could not return to his past relevant work as a census enumerator, medical supply technician, apartment maintenance worker, or a maintenance mechanic (R. 20), but that Bishop could work at jobs that exist in significant numbers in the national economy, such as night cleaner, laundry folder, and office helper. R. 21. Thus, the ALJ concluded that Bishop was not disabled. R. 22. On January 7, 2015, the Appeals Council denied Bishop’s request for a review and this appeal followed. R. 1-5.


         Bishop testified that he lost his job of twenty-five years working as a maintenance mechanic at a fiber plant in 2010. R. 43-44. After that he worked some short-term, odd jobs, but has been suffering from symptoms of anxiety and depression since losing his job. R. 37-43. Though the record reflects Bishop sought some treatment for his symptoms, he mainly received sporadic mental health care from a free clinic. R. 61. The free clinic records reveal diagnoses of bipolar disorder, attention deficit disorder, and depression. R. 581. See also, e.g., R. 602, 603, 605. Bishop received prescriptions for medication and counseling to treat his symptoms. Id.

         Because there was a lack of objective medical evidence available upon Bishop’s initial application, the Disability Determination Service referred him to Tonya McFadden, Ph.D., for a consultative psychological examination. R. 17. Bishop independently arranged another psychological consultative examination with Pamela S. Tessnear, Ph.D. R. 651-65. Bishop argues that the ALJ’s treatment of these examiners’ opinions was deficient, and that this error requires remand.

         Non-Treating Psychologists’ Opinions

         Bishop argues that the ALJ erred by failing to evaluate and properly credit the opinions of the two consultative examiners and argues that in so doing, the ALJ failed to remedy the deficiencies the Appeals Council identified when it remanded the case for further consideration. Pl.’s Br. Supp. Summ. J. 4. Essentially, Bishop contests the ALJ’s decision to give the doctors’ opinions only “some” weight without adequate explanation for that decision. Id. at 12, 13.

         The ALJ initially gave Dr. McFadden’s opinion “great weight” in his first opinion, but gave this same opinion only “some weight” in his second opinion. Pl.’s Br. Supp. Summ. J., 7-8. Bishop argues that the ALJ’s failure to explain why the same opinion from Dr. McFadden received disparate treatment in separate opinions constitutes error. To the extent Bishop argues that this was error because the ALJ did not comply with the Appeals Council’s remand order, this court is without jurisdiction to address that argument. A “remand order constitutes an intermediate agency action and not the final decision of the Commissioner.” Thompson v. Colvin, No. 1:09CV278, 2014 WL 185218, at *4 (M.D. N.C. Jan. 15, 2014) (citing Bass v. Astrue, No. 1:06CV591, 2008 WL 3413299, at *4 (M.D. N.C. Aug. 8, 2008)); see also Peckham v. Astrue, 780 F.Supp.2d 1195, 1203 (D. Kan. 2011); Brown v. Comm’r, No 1:08CV183, 2009 WL 465708, at *5 (W.D. Mich. Feb. 24, 2009) (holding the same). The issue for this court to review is whether “the Commissioner has applied the correct legal standards and whether his findings are supported by ...

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