United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE.
Teaette Oldham ("Oldham") seeks judicial review
of the Commissioner of Social Security
("Commissioner")'s denial of her claim for
disability insurance benefits ("DIB") and
supplemental Social Security income ("SSI").
Specifically, Oldham claims that the Administrative Law Judge
("ALJ")'s determination of residual functional
capacity ("RFC") failed to properly account for her
cognitive and physical impairments, and failed to give
appropriate weight to the opinions of physicians and other
evidence. She also argues that the opinion failed to analyze
a relevant listing for her significant vision impairment.
Oldham claims correcting for these alleged errors could
result in her being found disabled and therefore seeks remand
of her claim. This action was referred to the undersigned
United States Magistrate Judge pursuant to provisions of 28
U.S.C. § 636(b)(1)(B) and (C), and Rule 72(b) of the
Federal Rules of Civil Procedure.
reviewing the parties' briefs and the administrative
record of the Agency's findings, this Report concludes
that the ALJ's decision failed to comply with recent
Fourth Circuit precedent regarding Oldham's limitations
in concentration, persistence and pace, and improperly
assessed Oldham's vision impairments and need for an
assistive device. Accordingly, for the reasons stated in
detail below, this report recommends that the court REMAND
the final decision of the Commissioner by DENYING the
Commissioner's Motion for Summary Judgment (ECF No. 16)
and GRANTING IN PART Oldham's Motion for Summary Judgment
(ECF No. 12).
November 14, 2012, Oldham filed an application for DIB and
SSI. R. at 19. She alleged that she was disabled as of
September 10, 2009, due to major depression, back problems,
poor vision, hepatitis C, cirrhosis of the liver, right eye
blindness, carpel tunnel syndrome, and anxiety. R. at 80,
267. The state agency denied her application initially and
again upon reconsideration. R. at 106-07, 137-38. Oldham then
requested an administrative hearing, which was conducted June
23, 2015. R. at 71. Oldham was represented by an attorney. R.
determined Oldham was last eligible for DIB under the Social
Security Act on March 31, 2010, identifying this as
Oldham's Date Last Insured ("DLI").
Id. The ALJ denied Oldham's claims for DIB and
SSI, finding she was not disabled between September 10, 2009,
and July 7, 2015. R. at 33. The Appeals Council denied
Plaintiffs request for review on November 16, 2016. R. at
1-3. Oldham then filed the Complaint in the present action
seeking review of the administrative proceedings. Compl. at 1
(ECF No. 1).
was born in 1965. R. at 231. On her DLI, she was 44 years
old; at the time of the ALJ's decision, she was 49 years
old. She did not complete the ninth grade, and has rarely
worked. R. at 63. Her last job was at a thrift store hanging
and folding clothes between January and February 2012. R. at
48. The relevant portions of Oldham's medical history are
summarized here, as are the portions of the administrative
proceedings below that are relevant to her arguments in this
History of Mental Health Treatment and Evaluation.
received treatment for depression and anxiety at Norfolk
Community Services Board ("CSB") from May 2012 to
December 2014. See R. at 626-31, 756-85, 796-828. During her
initial visit on May 1, 2012, her treating psychiatrist, Dr.
Sari Kohazi, recorded that Oldham reported having experienced
depression and anxiety for most of her life. R. at 626. She
reported no history of hospitalization to treat mental
illness or any other outpatient psychiatric care.
Id. She complained of feelings of hopelessness and
difficulty starting and completing tasks. Id. An
examination of her mental status revealed she had a sad,
depressed, and anxious mood and a constricted affect.
Id. She was calm and had no psychomotor
disturbances, atypical behaviors, paranoia, or
hallucinations. R. at 628. She exhibited immediate retention
and recall, grossly intact higher cognitive functions, and
fair to good insight and impulse control. Id. Dr.
Kohazi diagnosed her with a number of conditions: major
depressive disorder, anxiety disorder, panic disorder with
agoraphobia, as well as alcohol abuse, cannabis abuse, and
opioid abuse, all "reportedly in remission." R. at
629. Dr. Kohazi assessed her in May 2012 with a Global
Assessment of Functioning ("GAF") score of
She exhibited "deficits in peer relations, deficits in
dealing with authority, poor impulse control, clinical
depression and anxiety, and other dysfunctional symptoms
having an adverse impact on concentration, the ability to
learn, and the ability to participate in employment and
social activities." R. at 630. Dr. Kohazi directed her
to abstain from alcohol and drugs and to continue taking a
prescribed anti-depressant and a drug used to treat panic
the course of her treatment at CSB, Oldham sometimes reported
doing well or feeling good when she complied with her
medication regimen. See, e.g., R. at 781 (Dec. 6,
2012), 784-85 (Sept. 7, 2012), 771-72 (Apr. 2, 2013), 775-76
(May 16, 2013). Her GAF scores varied between a low of 50 and
a high of 65, but were generally between 55 and 65.
E.g., R. at 759 (GAF of 65 on Apr. 2, 2013), 770
(GAF of 65 on Sept. 17, 2013), 799 (GAF of 55 on Dec. 19,
2013), 803 (50 on Mar. 4, 2014), 808 (59 on July 17, 2014),
814 (60 on Oct. 20, 2014), 822 (62 on Dec. 18, 2014). On one
occasion, during a period of homelessness, she reported
abusing alcohol once a month and feeling depressed. R. at 802
(treatment on Mar. 4, 2014).
2014, her treating physician assessed a decline in her
functioning and attributed it to her not maintaining her
medication regimen. R. at 808. In October 2014, her physician
reported she had not been taking her medications and that she
had low mood but still exhibited intact higher cognitive
functioning and impulse control as well as fair insight and
judgment. R. at 813. In December 2014, Oldham still was not
fully adhering to her prescribed medications, though she told
her psychiatrist she was doing "okay." R. at
821-22. She admitted to her treating physicians that she
occasionally smoked marijuana and drank in excess of five
drinks two to four times per month. R. at 761.
November 2014 Medical Evaluation form for the state's
Department of Social Services, one of Oldham's
psychiatrists, Dr. Bandaranayake, indicated she could not
participate in employment and training activities "in
any capacity" for 12 months. R. at 786. He hand-wrote a
list of the limitations that would keep her from employment
and training activities: "Depressed mood, anhedonia,
anxiety, low energy." R. at 787. But, he did not
recommend she apply for disability. Id. In March
2015, Dr. Bandaranayake checked boxes on a functional
capacity assessment form to indicate his opinion that Oldham
had moderate limitations in carrying out detailed
instructions, maintaining attention, performing activities on
a schedule, working in coordination with others, or making
simple work-related decisions., and a number of other areas
of sustained concentration and persistence. R. at 789-90. Dr.
Bandaranayake supplemented his check-the-box opinions,
writing that his "interactions with Ms. Oldham [were]
limited as I have only seen her twice, in October and
December 2014." R. at 791. In June of 2015, Dr.
Bandaranayake submitted a letter to Oldham's attorney
confirming that his March 2015 assessment of her functional
capacity was still accurate. R. at 830.
History of Physical Health Treatment and Evaluation.
26, 2011, Oldham was diagnosed with aphakia,  vitreous
opacities, and hypermetropia. R. at 404. She reported a history
of lazy eye glaucoma, cataracts, legal blindness, and retinal
detachment. R. at 403.
3, 2013, Oldham sought treatment after she reportedly fell
out of a vehicle, injuring her back and suffering rib pain.
R. at 733. On May 16, 2013, she sought pain medication for a
bruise that she incurred in the fall. R. at 669. On August
14, 2013, she sought emergency room treatment for a head
injury after a separate incident in which she was assaulted
with a board; she was diagnosed with swelling and bruising
over her right orbit. R at 697.
August 23, 2013, Oldham underwent an ophthalmic examination
at the request of the state agency. R at 741. Dr. Vincent
Verdi recorded "Her uncorrected visual acuity is no
light perception right eye, count fingers left eye. Best
corrected visual acuity no light perception right eye, count
fingers left eye." Id. He diagnosed her with
"[significant congenital cataract surgery right and left
eye that left with aphakic [sic] without lenses, with a
retinal detachment and repair with multiple retinal
scarring." R. at 742. He opined that she was limited in
the following ways: "no depth perception, no driving and
due to her visually significant legal blindness, she has
difficulty ambulating." Id. He did note that
Oldham was able to "maneuver" around the office.
September 16, 2013, Oldham underwent an examination at the
request of the state agency with Dr. Richard Hoffman. R at
746. Dr. Hoffman recorded that Oldham could only see shadows
out of her right eye, making daily hygiene difficult.
Id. He reported she used a cane to help her maintain
her balance. R. at 746, 748. She reported chronic back pain
from previous work as a packer. R. at 747. Regarding her
ability to walk, Dr. Hoffman opined:
She used her cane to help her balance. She had significant
difficulty climbing to and from the examination table. Gait
was otherwise normal except for needing the cane for balance.
She was able to do heel walk, toe walk and tandem walk,
though she did seem to have difficulty maintaining a straight
line apparently because of her vision at least that is what
R. at 748. Dr. Hoffman concluded she had limitations on her
ability to stand, walk, sit, lift, and carry, and that her
visual limitations would keep her from safely driving a
vehicle. Id. He also opined, "It is clear that
she needs an assistive device for walking for balance because
of her blindness." Id.
Testimony Before the Administrative Law Judge.
testified before the ALJ at her hearing on June 23, 2015. R.
at 41. Regarding her visual impairments, Oldham testified she
was completely blind in her right eye. R. at 51. She told the
ALJ she needed a cane and that she stumbled and fell
frequently because she had no cane to help her walk.
Id. She also testified that she could not read a
newspaper due to her visual limitations, R. at 62, and that
she bumps into walls and people. R. at 64.
her mental health, she suffered from depression and anxiety
and had to receive treatment at a crisis center in March 2014
because of her mental health struggles. R. at 51-52. She
admitted to having an alcohol dependency but testified she
had been abstinent from alcohol in the 12 months before the
hearing. R. at 47. She also described two falls where she
broke bones in her hands. R. at 50.
also elicited testimony from Barbara Beyers, a vocational
expert ("VE"), to assist him in determining whether
there were jobs in the national economy Oldham was capable of
performing. See R. at 65. He presented the VE with the
following hypothetical person: someone of Oldham's age,
education, and work background who
could perform light work provided that work would not require
more than occasional postural activities, would not require
any climbing or exposure to heights or hazards, could be
performed by a person having monocular vision only and would
be limited to the performance of only simple, repetitive and
R. at 65-66. The VE testified that there were jobs in the
national economy in significant numbers a person so situated
could perform. R. at 66. She identified cashier, produce
sorter and folding machine operator as positions that fit
within the hypothetical. R. at 66. When asked what difference
it would make if the hypothetical person were to also have
the limitations Dr. Bandaranayake found Oldham to
have-limitations regarding concentration, maintaining a
schedule, keeping up a routine, etc.-the VE testified there
would be no jobs available for such a person in significant
numbers in the national economy. R. at 67-68. Likewise, if
Oldham's self-described limitations related to standing
or walking were credited, they would preclude all work. R. at
STANDARD OF REVIEW
reviewing a decision of the Commissioner denying benefits,
the court is limited to determining whether the decision was
supported by substantial evidence on the record and whether
the proper legal standard was applied in evaluating the
evidence. 42 U.S.C. § 405(g); Mastro v. Apfel.270 F.3d 171, 176 (4th Cir. 2001); Hays v. Sullivan.
907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is
"such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. N.L.R.B.. 305 U.S.
197, 229 (1938)). It consists of ...