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Oldham v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

January 17, 2018

TEAETTE OLDHAM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Teaette Oldham[1] ("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.

         After 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).

         I. PROCEDURAL BACKGROUND

         On 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. at 19.

         The ALJ 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).

         II. FACTUAL BACKGROUND

         Oldham 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 court.

         a. History of Mental Health Treatment and Evaluation.

         Oldham 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 65.[2] 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 disorders. Id.

         Over 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).

         In June 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.

         On a 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, [3] 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.

         b. History of Physical Health Treatment and Evaluation.

         On May 26, 2011, Oldham was diagnosed with aphakia, [4] vitreous opacities, and hypermetropia.[5] R. at 404. She reported a history of lazy eye glaucoma, cataracts, legal blindness, and retinal detachment. R. at 403.

         On May 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.

         On 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. Id.

         On 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 she said.

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.

         c. Testimony Before the Administrative Law Judge.

         Oldham 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.

         Regarding 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.

         The ALJ 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 routine tasks.

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 66-67.

         III. STANDARD OF REVIEW

         In 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 ...


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