United States District Court, W.D. Virginia, Roanoke Division
S. Ballou United States Magistrate Judge
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
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
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. 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.
filed for DIB on March 1, 2011, claiming that his disability
began on December 2, 2010. 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.
23, 2014, the ALJ entered his decision analyzing
Bishop’s claim under the familiar five-step
process 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. 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.
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
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
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.
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