United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
J. NOVAK, UNITED STATES MAGISTRATE JUDGE
April 28, 2014, Tammy Olsen ("Plaintiff) applied for
Social Security Disability Benefits ("DIB") under
the Social Security Act ("Act"), alleging
disability from depression, fibromyalgia, arthritis, back and
neck problems, bipolar disorder, anxiety and panic attacks,
with an alleged onset date of March 3, 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.
now seeks judicial review of the ALJ's decision pursuant
to 42 U.S.C. § 405(g), arguing that the ALJ erred by
affording little weight to the opinion of Glen Monteiro,
M.D., failing to account for Plaintiffs moderate limitations
in concentration, persistence and pace, failing to discuss
all of the evidence related to Plaintiffs mental impairments
and failing to conduct a function-by-function analysis. (Mem.
in Support of Pl.'s Mot. For Summ. J. ("Pl.'s
Mem.") (ECF No. 12) at 9-17.) 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 ripe
for review. For the reasons that follow, the Court
recommends that Plaintiffs Motion for Summary Judgment or in
the Alternative, Motion for Remand (ECF Nos. 10, 11) be
GRANTED, that Defendant's Motion for Summary Judgment
(ECF No. 13) be DENIED and that the final decision of the
Commissioner be VACATED and REMANDED.
April 28, 2014, Plaintiff protectively filed an application
for DIB with an alleged onset date of March 3, 2014. (R. at
200-01.) The SSA denied these claims initially on November
21, 2014, and again upon reconsideration on May 13, 2015. (R.
at 97, 113.) At Plaintiffs written request, the ALJ held a
hearing on January 6, 2017. (R. at 35-72, 126-27.) On
February 17, 2017, the ALJ issued a written opinion, denying
Plaintiffs claims and concluding that Plaintiff did not
qualify as disabled under the Act, because Plaintiff could
perform jobs existing in significant numbers in the national
economy. (R. at 15-29.) On December 28, 2017, 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 1-6.)
STANDARD OF REVIEW
reviewing the Commissioner's decision to deny benefits, a
court "will affirm the Social Security
Administration'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 (4lh Cir. 2012); Craig v. Clutter, 76 F.3d
585, 589 (4th Cir. 1996). Indeed, "the substantial
evidence standard 'presupposes ... a zone of choice
within which the decision makers can go either way, without
interference by the courts. An administrative decision is not
subject to reversal merely because substantial evidence would
have supported an opposite decision.'" Dunn v.
Colvin, 607 Fed.Appx. 264, 274 (4th Cir. 2015) (quoting
Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir.
1988)). To determine whether substantial evidence exists, the
court must examine the record as a whole, but may not
"undertake to re-weigh 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 "take
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.
N.L.R.B., 340 U.S. 474, 488 (1951)). The
Commissioner's findings as to any fact, if substantial
evidence in the record supports the Findings, bind the
reviewing court to affirm regardless of whether the court
disagrees with such findings. Hancock, 667 F.3d at
477. If substantial evidence in the record does not support
the ALJ's determination or if the ALJ has made an error
of law, the court must reverse the decision. Coffman v.
Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
Social Security Administration 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), 416.920(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 her physical and mental limitations. §
404.1545(a). At step four, the ALJ assesses whether the
claimant can perform her past work given her 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 6, 2017, the ALJ held a hearing during which
Plaintiff (represented by counsel) and a vocational expert
("VE") testified. (R. at 35-72.) On February 17,
2017, the ALJ issued a written opinion, finding that
Plaintiff did not qualify as disabled under the Act. (R. at
followed the five-step evaluation process established by the
Act in analyzing Plaintiffs disability claim. (R. at 15-29.)
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 3, 2014, the alleged
onset date. (R. at 17.) At step two, the ALJ found that
Plaintiff suffered from the following severe impairments:
spine disorder, left shoulder disorder, right knee disorder,
carpel tunnel syndrome, paresthesias, obesity, depressive
disorder, bipolar disorder and anxiety disorder. (R. at 17.)
At step three, the ALJ found that Plaintiff did not suffer
from an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.
assessing Plaintiffs RFC, the ALJ found that Plaintiff could
perform sedentary work with additional limitations. (R. at
21.) Plaintiff could never climb ladders, ropes, or
scaffolds, but she could occasionally climb ramps and stairs
and occasionally balance, stoop, kneel, crouch, and crawl.
(R. at 22.) Plaintiff could occasionally push and/or pull
with the right lower extremity, frequently push and/or pull
with the non-dominant left upper extremity, frequently reach
with the left upper extremity, and frequently handle, finger,
and feel using the bilateral upper extremities. (R. at 22.)
Plaintiff could have no more than occasional exposure to work
hazards. (R. at 22.) The ALJ further limited Plaintiff to
performing simple, routine and repetitive tasks for two hours
at a time and making simple work-related decisions. (R. at
22.) Plaintiff could make rare changes (meaning no more than
ten percent) in the general nature of the work setting or
work tasks to be performed. (R. at 22.) Finally, the ALJ
limited Plaintiff to no more than occasional interaction with
the public, co-workers and supervisors. (R. at 22.)
four, the ALJ found that Plaintiff could not perform any past
relevant work. (R. at 27.) At step five, the ALJ determined
that Plaintiff could perform jobs existing in significant
numbers in the national economy. (R. at 28-29.) Therefore,
Plaintiff did not qualify as disabled under the Act. (R. at
age forty-five at the time of this Report and Recommendation,
previously worked as a community college instructor, lab
manager at a doctor's office, medical assistant,
phlebotomist and a phlebotomy supervisor. (R. at 216, 222.)
She applied for Social Security Benefits, alleging disability
from depression, fibromyalgia, arthritis, back and neck
problems, bipolar disorder, anxiety and panic attacks, with
an alleged onset date of March 4, 2014. (R. at 220-21.)
Plaintiffs appeal to this Court alleges that the ALJ erred by
affording little weight to the opinion of Dr. Monteiro,
failing to account for Plaintiffs moderate limitations in
concentration, persistence and pace, failing to properly
assess all of the evidence related to Plaintiffs mental
impairments and failing to conduct a function-by-function
analysis. (Pl.'s Mem. at 9-17.) For the reasons set forth
below, the ALJ erred in his decision.
The ALJ Did Not Err in Assigning Little Weight to Dr.
argues that the ALJ erred in assigning little weight to the
opinion of Dr. Monteiro and failed to sufficiently explain
his reasoning for doing so. (Pl.'s Mem. at 11-13.)
Defendant responds that substantial evidence supports the
ALJ's assignment of weight to Dr. Monteiro's opinion.
(Def.'s Mot. for Summ. J. and Mem. in Supp.
("Def.'s Mem.") (ECF No. 12) at 17-18.)
the sequential analysis, when the ALJ determines whether the
claimant experiences a medically-determinable severe
impairment, or combination of impairments, that would
significantly limit the claimant's physical or mental
ability to do basic work activities, the ALJ must analyze the
claimant's medical records that are provided and any
medical evidence resulting from consultative examinations or
medical expert evaluations that have been ordered. 20 C.F.R.
§§ 404.1512, 404.1527. When the record contains
several medical opinions that are consistent with each other,
the ALJ decides based on that evidence. § 404.1527(c).
If. however, the medical opinions do not comport with each
other or with other evidence, the ALJ must evaluate the
opinions and assign them respective weight to properly
analyze the evidence involved. § 404.1527(c)(2)-(6),
the regulations, an ALJ may consider only an "acceptable
medical source" as a treating source that offers an
opinion entitled to controlling weight. SSR
06-03p. Acceptable medical sources include
licensed physicians, licensed or certified psychologists and
certain other specialists, depending on the claimed
disability. §§ 404.1513(a), 404.1527(a).
416.913(a), 416.927(a). A treating source's opinion must
be given controlling weight if medically acceptable clinical
and laboratory diagnostic techniques support it, and it
comports with other substantial evidence in the record.
§ 404.1527(c)(2); Lewis v. Beryhill, 858 F.3d
858, 867 (4th Cir. 2017); Craig, 76 F.3d at 590; SSR
96-2p. Further, the regulations do not require
that the ALJ accept opinions from a treating source in every
situation, such as when the source opines on the issue of
disability (an issue reserved for the Commissioner), or when
the treating source's opinion proves inconsistent with
other evidence or when other evidence in the record does not
strongly support the opinion. §§
generally should not disturb an ALJ's decision as to the
weight afforded a medical opinion absent some indication that
the ALJ "dredged up 'specious
inconsistences.'" Dunn v. Calvin, 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 weight afforded a medical
opinion should be left untouched unless the ALJ failed to
give a sufficient reason for the weight afforded,
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 a claimant qualifies as
disabled as defined under the Act. § 404.1527(d)(1).
Although the regulations explicitly apply these enumerated
factors only to treating sources, those same factors may be
applied in evaluating opinion evidence from "other
sources." SSR 06-03p.
the ALJ may consider the time frame of the evidence. The
relevant time period spans from the alleged onset - March 3,
2014 - through the date last insured - June 30, 2017.
Plaintiff must prove her disability within that time frame.
20 C.F.R. §§ 404.101(a), 404.130; Johnson,
434 F.3d at 655-56. While the ALJ may consider evidence
created after the date last insured, the evidence must
provide a link to Plaintiffs condition before the
date last insured. Bird, 699 F.3d at 340-41.
Evidence "not linked in any manner to the claimant's
condition before her [date last insured]" has no
relevance on the ALJ's determination, and the ALJ does
not need to retroactively consider it. Johnson, 434
F.3d at 655-56.
presented to Dr. Monteiro on April 15, 2011, complaining of
back and knee pain. (R. at 296-300.) Plaintiff reported that
heat, ice, pain management and muscle relaxants improved her
back pain, but walking longer than fifteen minutes and
standing longer than thirty minutes worsened the pain. (R. at
296-97.) Plaintiff stated that she suffered from right knee
problems "all her life" and that her knee pained
worsened when she climbed stairs. (R. at 297.) With respect
to activities of daily living, Plaintiff reported difficulty
putting on socks and shoes, but she could feed and bathe
herself with minimal assistance. (R. at 297.) Although
Plaintiff stated that she used a walker when her pain
worsened, Dr. Monteiro observed Plaintiff walk into the
examination room with no assistive device and in no apparent
distress. (R. at 298.)
physical examination, Dr. Monteiro noted Plaintiffs mild
obesity, restricted range of motion of the thoracolumbar
spine, spastic pain at ¶ 4-L5, sciatica-like pain on the
right side and decreased range of motion of Plaintiff s right
knee, compared to the left. (R. at 298-99.) Otherwise,
Plaintiff walked with a normal gait, had negative
straight-leg raising test results bilaterally, good grip
strength and 5/5 grip strength in the upper and lower
extremities. (R. at 299.) Although Plaintiff had reduced
bilateral ankle, brachioradialis and patella reflexes, she
had sensation within normal limits in the lower extremities.
(R. at 299.)
Monteiro diagnosed Plaintiff with chronic low back pain and
chronic right knee pain. With respect to the back pain, Dr.
Monteiro recommended that Plaintiff obtain new images of her
back, pursue physical therapy and continue pain management,
which including taking Neurontin, Percocet and Zanaflex. (R.
at 299.) Notably, Dr. Monteiro reported that Plaintiff
displayed "no red flags" of lower back pain, such
as loss of bowel or bladder control, loss of sensation around
the perineal region and night time pain. (R. at 299.) With
respect to Plaintiffs knee pain, Dr. Monteiro opined that
Plaintiff likely suffered from chondromalacia based on her
history and note from an orthopedic surgeon stating that she
had this condition. (R. at 297, 299.) Again, Dr. Monteiro
recommended that Plaintiff obtain new images and pursue
physical therapy. (R. at 299.)
on that single examination, Dr. Monteiro opined that, during
an eight-hour workday, Plaintiff could stand and walk for
four hours, sit for four hours, and she could carry and lift
five pounds occasionally and less than two pounds frequently.
(R. at 300.) Plaintiff had no manipulative, visual or
communicative limitations. (R. at 300.) Dr. Monteiro stated
that Plaintiff would have limitations with stooping,
crouching and bending. (R. at 300.) Because Plaintiff told
Dr. Monteiro that she used a walker when her back pain
worsened, Dr. Monteiro suggested that she may benefit from a
single-point or four-point cane for additional balance and
support. (R. at 300.)
The AL.I Provided Legally Sufficient Reasoning for Assigning
Dr. Monteiro's Opinion Little Weight.
assigned little weight to Dr. Monteiro's opinion and
adequately explained his reasoning for doing so. (R. at 25.)
First, the ALJ discounted Dr. Monteiro's opinion, because
Dr. Monteiro based his opinion on a one-time examination. (R.
at 25.) This reasoning comports with the regulations, which
direct the ALJ to consider the length and frequency of a
treating source's examination, as well as the nature and
extent of the treatment relationship. (R. at 25, 297-300);
§ 404.1527(d)(1). The regulations also direct the ALJ to
consider the extent to which a medical opinion yields support
from and maintains consistency with the claimant's
medical records. § 404.1527(d)(1). Accordingly, the ALJ
afforded Dr. Monteiro's opinion little weight, because it
lacked consistency with his own examination notes showing
that Plaintiff walked with a normal gait, did not use an
assistive device, could walk on her toes and heels, and
perform a heel to shin walk. (R. at 25, 297-99). Moreover,
the ALJ noted that Dr. Monteiro examined Plaintiff three
years before her alleged disability onset date, and that Dr.
Monteiro's opinion did not comport with more recent
treatment records from Virginia Commonwealth University
("VCU") Health System. (R. at 25); §
the ALJ discounted Dr. Monteiro's opinion, because he
"heavily based" his opinion on Plaintiffs
subjective complaints of chronic back and right knee pain.
(R. at 25.) Plaintiff argues that "the ALJ gave no clue
as to how he knew this, and in any event, it is untrue."
(Pl.'s Mem. at 12.) Contrary to Plaintiffs assertion, Dr.
Monteiro's treatment notes make clear that he based his
assessment on Plaintiffs self-reported history of pain, as
well as his own observations and a note from Halifax Regional
Hospital, dated April 14, 2010. (R. at 296-300.)
instance, Dr. Monteiro observed "no red flags" of
low back pain on examination. (R. at 299.) Yet, he diagnosed
Plaintiff with chronic low back pain and noted Plaintiffs
"longstanding history of lower back pain" in his
functional assessment. (R. at 299.) Similarly, Dr. Monteiro
observed no joint deformity or swelling in Plaintiffs right
knee, but he diagnosed her with chronic right knee pain and
opined that she likely had chondromalacia of the right knee,
"given her history and operative note." (R. at
299.) Despite observing Plaintiff walk without an assistive
device and appearing in no apparent distress, Dr. Monteiro
opined that Plaintiff might benefit from use of a cane based
on Plaintiffs statement that she used a walker when her back
pain flared up. (R. at 300.) These statements from Dr.
Monteiro's treatment notes support the ALJ's finding
that Dr. Monteiro heavily relied on Plaintiffs subjective
complaints. (R. at 25, 298-99.) Accordingly, the Court finds
that the ALJ provided legally sufficient reasoning for
assigning Dr. Monteiro's opinion little weight.
Substantial Evidence Supports the ALJ's
evidence, including Plaintiffs medical records, testimony and
reported daily activities support the ALJ's assignment of
little weight to Dr. Monteiro's restrictive opinion.
March 23, 2011, Plaintiff presented to Community Memorial
Healthcenter to have scans taken of her right knee and
lumbosacral spine. (R. at 292, 294.) Imaging of Plaintiff s
right knee revealed no acute bony abnormality and minimal
medial compartment joint space narrowing without significant
degenerative changes. (R. at 292.) The scans of Plaintiff s
spine likewise showed no acute bony abnormality, as well as
minimal degenerative changes and ...