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Olsen v. Berryhill

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

January 15, 2019

TAMMY OLSEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK, UNITED STATES MAGISTRATE JUDGE

         On 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.

         Plaintiff 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.[1] 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.

         I. PROCEDURAL HISTORY

         On 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.)

         II. STANDARD OF REVIEW

         In 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).

         The 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).

         III. THE ALJ'S DECISION

         On 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 15-29.)

         The ALJ 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. at 18.)

         In 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.)

         At step 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 28-29.)

         IV. ANALYSIS

         Plaintiff, 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.

         A. The ALJ Did Not Err in Assigning Little Weight to Dr. Monteiro's Opinion.

         Plaintiff 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.)

         During 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), (d).

         Under 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.[2] 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.[3] 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. §§ 404.1527(c)(3)-(4), (d).

         Courts 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, hi.

         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 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.

         Additionally, 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.

         Plaintiff 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.)

         Upon 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.)

         Dr. 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.)

         Based 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.)

         1. The AL.I Provided Legally Sufficient Reasoning for Assigning Dr. Monteiro's Opinion Little Weight.

         The ALJ 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); § 404.1527(d)(1).

         Finally, 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.[5] (R. at 296-300.)

         For 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.

         2. Substantial Evidence Supports the ALJ's Decision.

         Substantial evidence, including Plaintiffs medical records, testimony and reported daily activities support the ALJ's assignment of little weight to Dr. Monteiro's restrictive opinion.

         On 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 ...


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