United States District Court, E.D. Virginia, Richmond Division
ERIK R. THOMPSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
J. Novak, United States Magistrate Judge.
December 16, 2014, Erik R. Thompson ("Plaintiff')
applied for Social Security Disability Benefits
("DIB") under the Social Security Act
("Act"), alleging disability from fibromyalgia,
degenerative disc disease, irritable bowel syndrome
("IBS"), anxiety disorders (including posttraumatic
stress disorder ("PTSD")), organic mental disorders
and affective disorders, with an alleged onset date of
December 8, 2014. The Social Security Administration
("SSA") denied Plaintiffs claims both initially and
upon reconsideration. Thereafter, an Administrative Law Judge
("ALJ") denied Plaintiffs claims in a written
decision, and the Appeals Council denied Plaintiffs request
for review, rendering the ALJ's decision as the final
decision of the Commissioner.
seeks judicial review of the ALJ's decision pursuant to
42 U.S.C. § 405(g), arguing that the ALJ erred by
failing to properly evaluate the medical evidence and medical
opinions of Plaintiff s treating physicians, and by failing
to give proper weight to a determination of disability made
by the Department of Veterans Affairs ("VA").
(Pl.'s Br. in Supp. of Pl.'s Mot. for Summ. J.
("Pl.'s Mem.") (ECF No. 11) at 5-6.) This
matter now comes before the Court for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on
the parties' cross-motions for summary judgment,
rendering the matter now ripe for review. For the reasons
that follow, the Court recommends that Plaintiffs Motion for
Summary Judgment (ECF No. 10) be GRANTED, that
Defendant's Motion for Summary Judgment (ECF No. 12) be
DENIED and that the final decision of the Commissioner be
REVERSED and REMANDED.
December 16, 2014, Plaintiff filed an application for DIB
with an alleged onset date of December 8, 2014. (R. at
162-63.) The SSA denied the claim initially on April 17,
2015, and again upon reconsideration on September 18, 2015.
(R. at 15, 51-67, 69-82.) At Plaintiffs written request, the
ALJ held a hearing on January 7, 2016. (R. at 33-50, 101-02.)
On March 11, 2016, the ALJ issued a written opinion denying
Plaintiffs claims and concluding that Plaintiff did not
qualify as disabled under the Act, because he could perform
work that exists in the national economy. (R. at 27-28.) On
August 8, 2016, the Appeals Council denied Plaintiffs request
for review, rendering the ALJ's decision as the final
decision of the Commissioner subject to review by this Court.
(R. at 1-3.)
STANDARD OF REVIEW
reviewing the Commissioner's decision to deny benefits, a
court "will affirm the [SSA]'s disability
determination 'when an ALJ has applied correct legal
standards and the ALJ's factual findings are supported by
substantial evidence.'" Mascio v. Colvin,
780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm
'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir.
2012)). Substantial evidence requires more than a scintilla
but less than a preponderance, and includes the kind of
"relevant evidence [that] a reasonable mind [could]
accept as adequate to support a conclusion." Hancock
v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971));
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966). To determine whether substantial evidence exists, the
court must examine the record as a whole, but may not
"undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the [ALJ]." Hancock, 667 F.3d at 472
(quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th
considering the decision of the Commissioner based on the
record as a whole, the court must "tak[e] into
account... 'whatever in the record fairly detracts from
its weight.'" Breeden v. Weinberger, 493
F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951)). If substantial
evidence in the record supports the Commissioner's
findings as to any fact, then the reviewing court must affirm
regardless of whether the court disagrees with such findings.
Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
The court must reverse the decision if substantial evidence
does not support the ALJ's determination or if the ALJ
makes an error of law. See Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987).
regulations set forth a five-step process that the agency
employs to determine whether disability exists. 20 C.F.R.
§ 404.1520(a)(4); see Mascio, 780 F.3d at
634-35 (describing the ALJ's five-step sequential
evaluation). To summarize, at step one, the ALJ looks at the
claimant's current work activity. §
404.1520(a)(4)(i). At step two, the ALJ asks whether the
claimant's medical impairments meet the regulations'
severity and duration requirements. § 404.1520(a)(4)(H).
Step three requires the ALJ to determine whether the medical
impairments meet or equal an impairment listed in the
regulations. § 404.1520(a)(4)(iii). Between steps three
and four, the ALJ must assess the claimant's residual
functional capacity ("RFC"), accounting for the
most that the claimant can do despite his physical and mental
limitations. § 404.1545(a). At step four, the ALJ
assesses whether the claimant can perform his past work given
his RFC. § 404.1520(a)(4)(iv). Finally, at step five,
the ALJ determines whether the claimant can perform any work
existing in the national economy. § 404.1520(a)(4)(v).
THE ALJ'S DECISION
January 7, 2016, the ALJ held a hearing during which
Plaintiff (represented by counsel) and a vocational expert
("VE") testified. (R. at 33.) On March 11, 2016,
the ALJ issued a written opinion, finding that Plaintiff did
not qualify as disabled under the Act. (R. at 12-32.)
followed the five-step evaluation process established by the
Social Security Act in analyzing Plaintiffs disability claim.
(R. at 16-28.) At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since his alleged
onset date. (R. at 17.) At step two, the ALJ determined that
Plaintiff had the following severe impairments: fibromyalgia;
degenerative disc disease; IBS; anxiety disorders (including
PTSD); organic mental disorders; and, affective disorders.
(R. at 18.) Then, at step three, the ALJ found that Plaintiff
did not have any impairment or combination of impairments
that met or medically equaled the severity of one of the
impairments in the listings. (R. at 19-21.)
assessing Plaintiffs RFC, the ALJ found that Plaintiff could
perform less than a full range of sedentary work. (R. at 21.)
He could occasionally climb, stoop, kneel, crouch and crawl,
but he could frequently balance. (R. at 21.) Plaintiff could
never have concentrated exposure to vibrations, and the ALJ
limited him to simple, routine tasks with no more than
occasional changes in the work setting. (R. at 21.) Finally,
he could have occasional contact with supervisors and
co-workers, but no interaction with the public. (R. at 21.)
four, the ALJ found that Plaintiff could not perform any of
his past relevant work. (R. at 26.) At step five, the ALJ
determined that Plaintiff could perform jobs existing in
significant numbers in the national economy. (R. at 27.)
Therefore, Plaintiff did not qualify as disabled under the
Act. (R. at 28.)
forty-two years old at the time of this Report and
Recommendation, previously worked as a collection clerk,
maintenance technician and supply and inventory specialist.
(R. at 48, 162, 212-20.) He applied for Social Security
Benefits, alleging disability from fibromyalgia, degenerative
disc disease, IBS, anxiety disorders (including PTSD),
organic mental disorders and affective disorders, with an
alleged onset date of December 8, 2014. (R. at 162-63.199.)
Plaintiffs appeal to this Court alleges that the ALJ erred by
(1) failing to properly evaluate the medical evidence and
medical opinions submitted by Plaintiffs treating physicians
and (2) failing to give proper weight to the VA disability
determination. (Pl.'s Mem. at 5-6, 14.) For the reasons
set forth below, the ALJ erred in his evaluation of the VA
Substantial evidence supports the weight that the ALJ
assigned to Plaintiffs treating physicians.
argues that the ALJ erred by failing to properly evaluate the
medical opinions of his treating physicians. (Pl.'s Mem.
at 6.) Specifically, Plaintiff argues that the following
factors led to the ALJ's failure to accord proper weight
to the medical opinions: (1) the ALJ emphasized evidence less
favorable to Plaintiff while ignoring favorable evidence; (2)
the ALJ mischaracterized evidence by omitting critical
evidence in the record that indicated Plaintiffs medical
conditions; and, (3) the ALJ emphasized that Plaintiffs
reported activities allegedly conflicted with the evidence of
record without explaining the conflict. (Pl.'s Mem. at
6-14.) Defendant responds that the ALJ properly assigned
weight to the opinions of the treating physicians, because
the ALJ found inconsistencies between the physicians'
opinions and substantial objective evidence throughout the
record. (Def.'s Mot. for Summ. J. & Br. in Supp.
Thereof ("Def.'s Mem.") (ECF No. 12) at 14-23.)
the sequential analysis, when the ALJ determines whether the
claimant has a medically-determinable severe impairment (or
combination of impairments), which would significantly limit
the claimant's physical or mental ability to do basic
work activities, the ALJ must analyze the medical records
that Plaintiff provides and any medical evidence resulting
from consultative examinations or medical expert evaluations.
20 C.F.R. § 404.1512(b).
the applicable regulations and case law, the ALJ must give
controlling weight to a treating physician's opinion if
medically acceptable clinical and laboratory diagnostic
techniques support it, and the opinion comports with
substantial evidence in the record. Lewis v.
Berryhill, 858 F.3d 858, 867 (4th Cir. 2017); 20 C.F.R.
§ 404.1527(c)(2) (2014); SSR 96-2p. Further, the
regulations do not require that the ALJ accept opinions from
a treating source in every situation. §§
404.1527(c)(3)-(4), (d). For example, the ALJ need not accept
a treating physician's opinion when the physician decides
a claimant's disability status for purposes of employment
(an issue reserved solely for the Commissioner), or when the
treating physician's opinion does not comport with other
evidence or lacks substantial support. Id.
courts should not disturb an ALJ's decision as to the
weight afforded to a medical opinion absent some indication
that the ALJ "dredged up 'specious
inconsistences.'" Dunn v. Colvin, 607
Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v.
Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). Indeed,
an ALJ's decision regarding the weight afforded to a
medical opinion should remain untouched unless the ALJ failed
to give a sufficient reason for the weight afforded. §
404.1527(d). The ALJ must consider the following when
evaluating a treating source's opinion: (1) the length of
the treating source relationship and frequency of
examination; (2) the nature and extent of the treatment
relationship; (3) supportability based upon the medical
record; (4) consistency between the opinion and the medical
record; (5) any specialization on the part of the treating
source; and, (6) any other relevant factors. §
404.1527(c). However, those same regulations specifically
vest the ALJ - not the treating source - with the authority
to determine whether to classify a claimant as
"disabled" as defined under the Act. §
404.1527(d)(1). If, however, the ALJ finds inconsistencies
among the medical opinions or other evidence, then the ALJ
must evaluate the opinions and assign them respective weight
to properly analyze the evidence involved. §
considering a treating source's opinion, the ALJ must
evaluate those findings just as any other medical opinion.
§ 404.1527(b)-(c). Determining the specific weight of
medical opinions serves an important purpose, because the
regulations further require a comparative analysis of
competing medical opinions. See, e.g., §
404.1527(c)(1) ("Generally, [the Commissioner] give[s]
more weight to the opinion of a source who examined
[claimant] than to the opinion of a source who has not
examined [claimant]."). The ALJ must "always give
good reasons in [the] notice of determination or decision for
the weight [the ALJ] give[s] [the claimant's] treating
source's medical opinion." § 404.1527(c)(2);
SSR 96-2p, at *5. The Commissioner's opinion must
"contain specific reasons for the weight given to the
treating source's medical opinion, [have support from]
evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source's medical
opinion and the reasons for that weight." SSR 96-2p, at
an ALJ to assign specific weight to medical opinions remains
necessary, because a reviewing court "face[s] a
difficult task in applying the substantial evidence test when
the [Commissioner] has not considered all relevant
evidence." Arnold v. Sec 'y of Health Educ.
& Welfare, 567 F.2d 258, 259 (4th Cir. 1977). Unless
the ALJ "has sufficiently explained the weight he has
given to obviously probative exhibits, to say that his
decision is supported by substantial evidence approaches an
abdication of the court's duty to scrutinize the record
as a whole to determine whether the conclusions reached are
rational." Id. (quoting Oppenheim v.
Finch, 495 F.2d 396, 397 (4th Cir. 1974)) (internal
quotation marks omitted). Accordingly, a reviewing court
cannot determine if substantial evidence supports an
ALJ's findings "unless the [ALJ] explicitly
indicates the weight given to all the relevant
evidence." Gordon v. Schweiker, 725 F.2d 231,
235 (4th Cir. 1984) (citing Myers v. Califano, 611
F.2d 980, 983 (4th Cir. 1980); Strawls v. Califano,
596 F.2d 1209, 1213 (4th Cir. 1979); Arnold, 567
F.2d at 259)).
the ALJ properly assigned little weight to the medical
opinions of three of Plaintiffs treating physicians - Deborah
Caruso, M.D.; Ifeyinwa Utah, M.D.; and, Toni Harris, Ph.D., -
and a treating kinesiotherapist, Mr. Carlos Moffett. (R. at
Dr. Caruso's Opinion
did not err in assigning little weight to Dr. Caruso's
opinion and offered specific reasoning for the weight
assigned. Dr. Caruso, a board-certified spinal cord injury
physician at the VA Medical Center, treated Plaintiff for
cervical stenosis every three to four months from November
13, 2014, to November 30, 2015. (R. at 189-90, 1743, 1824,
1867.) In her December 11, 2015 Physician's Questionnaire
("Questionnaire"), Dr. Caruso opined that Plaintiff
could sit and stand/walk less than two hours in an eight-hour
workday, and that he could rarely lift and carry twenty
pounds and occasionally lift or carry ten pounds or less. (R.
at 1821-24.) The ALJ gave little weight to Dr. Caruso's
opinion, because he found it "generally inconsistent
with the evidence of record" and "specifically,
because [Plaintiff] had [only] stable diffuse
mild-to-moderate cervical spondylosis from C3 through
C7." (R. at 24.) Substantial evidence supports the
Dr. Caruso's Questionnaire heavily draws from a
functional capacity examination ("FCE") that Dr.
Caruso herself did not conduct with Plaintiff. (R. at
1821-24.) In the Questionnaire, Dr. Caruso identified
cervical stenosis as Plaintiffs only diagnosis with symptoms
of chronic neuropathic pain and gait instability. (R. at
1821.) She further identified tenderness, anxiety, abnormal
gait and tingling/numbness as objective signs of Plaintiff s
impairments. (R. at 1821.) Dr. Caruso noted that clinical
findings and test results showed hyper-reflexive lower
extremities and 4/5 wrist extension or finger flexion. (R. at
Dr. Caruso left much of the Questionnaire incomplete. (R. at
1821-24.) She did not discuss whether Plaintiff had
limitations with spinal motion, nor did she comment on
Plaintiffs attention and concentration abilities, because the
FCE featured neither test. (R. at 1821-22.) Dr. Caruso also
did not test Plaintiffs ability to walk, but she opined that
Plaintiff could only sit, stand or walk less than two hours
total in an eight-hour workday with normal breaks. (R. at
1822.) Furthermore, she noted that Plaintiff would not need
to elevate his legs with prolonged sitting, but he must use a
cane or other assistive device while standing or walking as
"recommended by [the] FCE." (R. at 1822-23.)
Although she never assessed his functional ...