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Thompson v. Berryhill

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

January 18, 2018

ERIK R. THOMPSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak, United States Magistrate Judge.

         On 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.

         Plaintiff 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.[1] 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.

         I. PROCEDURAL HISTORY

         On 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.)

         II. STANDARD OF REVIEW

         In 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 Cir. 2005)).

         In 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).

         SSA 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).

         III. THE ALJ'S DECISION

         On 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.)

         The ALJ 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.)

         In 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.)

         At step 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.)

         IV. ANALYSIS

         Plaintiff, 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 disability decision.

         A. Substantial evidence supports the weight that the ALJ assigned to Plaintiffs treating physicians.

         Plaintiff 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.)

         During 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).

         Under 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.[2] 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.

         Generally, 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. § 404.1527(c)(2).

         When 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 *5.

         Requiring 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)).

         Here, 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 24-25.)

         1. Dr. Caruso's Opinion

         The ALJ 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 ALJ's decision.

         First, 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 1821.)

         However, 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 ...


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