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Gorrell v. Saul

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

July 31, 2019

PATRICIA A. GORRELL, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK UNITED STATES MAGISTRATE JUDGE

         On January 13, 2015, Patricia A. Gorrell ("Plaintiff) applied for Social Security Disability Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from arthritis, high cholesterol, left shoulder surgery, two left knee surgeries, surgery to remove a mass from her chest and screws in her right ankle, with an alleged onset date of July 20, 2013. The Social Security Administration ("SSA") denied Plaintiffs claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") declared Plaintiff disabled under the Act in a written decision. Upon review, the Appeals Council reversed the ALJ's decision, rendering the Appeals Council's decision as the final decision of the Commissioner.

         Plaintiff now seeks judicial review of the Appeals Council's decision pursuant to 42 U.S.C. § 405(g), arguing that the Appeals Council erred by: (1) assigning limited weight to the medical opinions of Peter Wishnie, D.P.M., and Euton Laing, M.D.; (2) finding Plaintiffs statements regarding the intensity, persistence and limiting effects of her symptoms only partially credible; and, (3) relying on the Vocational Expert's ("VE") response to an incomplete hypothetical to determine that Plaintiff could perform her past relevant work. (Mem. in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Mem.") (ECF No. 13-1) at 1.) 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.[2] For the reasons that follow, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 13) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 14) be DENIED and that the final decision of the Commissioner be VACATED and REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g).

         I. PROCEDURAL HISTORY

         On January 13, 2015, Plaintiff filed applications for DIB and SSI with an alleged onset date of July 20, 2013. (R. at 189, 210.) The SSA denied these claims initially on June 3, 2015, and again upon reconsideration on October 27, 2015. (R. at 67-68, 97-98.) At Plaintiffs written request, the ALJ held a hearing on July 24, 2017. (R. at 24-42, 118-19.) On August 24, 2017, the ALJ issued a written opinion, finding that Plaintiff qualified as disabled under the Act. (R. at 16-23.) On June 5, 2018, the Appeals Council issued a written opinion, adopting some of the ALJ's findings, but ultimately concluding that Plaintiff did not qualify as disabled under the Act. (R. at 5-10.) Thus, the Appeals Council's decision constitutes the final decision of the Commissioner subject to review by this Court.

         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. Asirue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chalet; 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 [Commissioner]." Hancock, 667 F.3d at 472 (quoting Johnson v. Bamhart, 434 F.3d 650, 653 (4th Cir. 2005)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1157 (2019) (holding that the substantial-evidence inquiry requires case-by-case consideration, with deference to the presiding ALJ's credibility determinations). 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 Commissioner's determination or if the ALC or Appeals Council 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), 416.920(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)(ii), 416.920(a)(4)(ii). 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), 416.920(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), 416.945(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. §§ 404.1520(a)(4)(iv), 416.920(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), 416.920(a)(4)(v).

         A claimant may request that the Appeals Council review the ALJ's decision, or the Appeals Council may initiate its own review of the ALJ's action anytime within sixty days after the ALJ issued his decision. 20 C.F.R.§§ 404.968, 404.969, 416. 1468, 416.1469. The Appeals Council will review a case if the ALJ's decision contains an error of law or lacks support from substantial evidence, 20 C.F.R. §§ 404.970, 416.1470, and the Appeals Council "may affirm, modify or reverse" the ALJ's decision, 20 C.F.R. §§ 404.979, 416.1479. When the Appeals Council makes a decision and issues its own opinion, courts must likewise uphold the Appeals Council's decision if it is supported by substantial evidence and "reached through the application of the correct legal standard." Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011) (quoting Craig, 76 F.3d at 589); Lovejoy v. Heckler, 790 F.2d 1114, 1116 (4th Cir. 1986).

         III. THE ALJ'S DECISION

         On July 24, 2017, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 24-42.) On August 25, 2017, the ALJ issued a written opinion, finding that Plaintiff qualified as disabled under the Act. (R. at 13-23.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 13-23.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 20, 2013. (R. at 19.) At step two, the ALJ found that Plaintiff had the following severe impairments: status-post superior mediastinal mass removal, bilateral arthritis of the knees, osteoarthritis of the right ankle and foot, status-post internal fixation, obesity and status-post rotator cuff tear. (R. at 19.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 19.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform sedentary work with additional limitations. Specifically, Plaintiff could occasionally climb ramps and stairs, occasionally stoop, crouch, balance and crawl, never kneel and never climb ladders, ropes or scaffolds. (R. at 20.) Plaintiff could occasionally reach overhead with the right upper extremity, occasionally push and pull controls with her upper and lower extremities, tolerate moderate noise and frequently handle and finger. (R. at 20.) The ALJ further assessed that Plaintiff could have no exposure to extremes in environmental conditions or concentrated pulmonary irritants, and Plaintiff required a cane to ambulate. (R. at 20.)

         At step four, the ALJ found that Plaintiff could not perform her past relevant work. (R. at 22.) At step live, the ALJ determined that Plaintiff could not perform jobs existing in significant numbers in the national economy. (R. at 22.) Therefore, the ALJ concluded that Plaintiff qualified as disabled under the Act. (R. at 22-23.)

         IV. THE APPEALS COUNCIL'S DECISION

         On June 5, 2018, the Appeals Council issued a written opinion, setting aside the ALJ's favorable decision. (R. at 2-15.) The Appeals Council identified two errors in the ALJ's opinion. (R. at 6-8.) First, the Appeals Council disagreed with the ALJ's finding that Plaintiff fulfilled the insured status requirements of §§ 2l6(i) and 223 of the Act through March 31, 2025. (R. at 6, 19.) After reviewing Plaintiffs earnings records, the Appeals Council found that Plaintiff satisfied the insured status requirements through June 30, 2019. (R. at 6.)

         Next, the Appeals Council disagreed with the ALJ's finding that Plaintiff could not perform her past relevant work. (R. at 7-8, 22.) The Appeals Council explained that Plaintiffs previous employment as a customer service representative constituted past relevant work, because her earnings records demonstrated that Plaintiff performed the work in the last fifteen years, and she performed the work 'long enough to learn how to do it and the earnings were consistent with substantial gainful activity levels." (R. at 7 (citing 20 C.F.R. §§ 404.1565, 416.965).) During the hearing before the ALJ, the VE testified that a hypothetical individual with the same age, education, work experience and RFC as Plaintiff could perform work as a customer service representative. (R. at 39-40.) Because the ALJ "offered no rationale for rejecting the [VE's] opinion" that Plaintiff could perform her past relevant work as a customer service representative, the Appeals Council held that substantial evidence did not support the ALJ's finding at step four or the ALJ's finding that Plaintiff qualified as disabled under the Act. (R. at 8.)

         After reviewing the entire record, the Appeals Council made the same findings as the ALJ at steps one, two and three of the sequential analysis. (R. at 6, 19.) The Appeals Council also adopted the same RFC as assessed by the ALJ. (R. at 7, 20.) At step four, the Appeals Council found that Plaintiff could perform her past relevant work as a customer service representative; thus, Plaintiff did not qualify as disabled under the Act. (R. at 10.)

         V. ANALYSIS

         Plaintiff, age sixty at the time of this Report and Recommendation, previously worked as a customer service representative. (R. at 7, 215.) She applied for Social Security Benefits, alleging disability from arthritis, high cholesterol, left shoulder surgery, two left knee surgeries, surgery to remove a mass from her chest and screws in her right ankle, with an alleged onset date of July 23, 2013. (R. at 213.) Plaintiffs appeal to this Court alleges that the Appeals Council erred by: (1) assigning limited weight to the medical opinions of Dr. Wishnie and Dr. Laing; (2) finding Plaintiffs statements regarding the intensity, persistence and limiting effects of her symptoms only partially credible; and, (3) relying on the VE's response to an incomplete hypothetical to determine that Plaintiff could perform her past relevant work. (Pl.'s Mem. at 1.) For the reasons set forth below, the Appeals Council erred in its decision.

         A. The Appeals Council Did Not Err in Assessing Dr. Wishnie's and Dr. Laing's Opinions.

         During the sequential analysis, when the ALJ determines whether the claimant has a mcdically-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 arc 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, 416 .912, 416.927. When the record contains a number of different medical opinions, including those from Plaintiffs treating sources, consultative examiners or other sources that are consistent with each other, then the ALJ makes a determination based on that evidence. §§ 404.1527(c), 416.927(c). If, however, the medical opinions are inconsistent internally with each other or 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), 416.927(c)(2)-(6), (d).

         Under the regulations, only an "acceptable medical source" may be considered a treating source that offers an opinion entitled to controlling weight. SSR 06-3p.[3] 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). The regulations also provide for the consideration of opinions from "other sources," including nurse-practitioners, physician's assistants or therapists. SSR 06-3p; §§ 404.1527(f), 416.927(f).[4] Under the applicable regulations and caselaw, a treating source's opinion must be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. §§ 404.1527(c)(2), 416.927(c)(2); Lewis v. Berryhill, 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, e.g., when the source opines on the issue of whether the claimant is disabled for purposes of employment (an issue reserved for the Commissioner), or when the treating source's opinion is inconsistent with other evidence or when it is not otherwise well-supported. §§ 404.1527(c)(3)-(4), (d), 416.927(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. 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 weight afforded a medical opinion should be left untouched unless the ALJ failed to give a sufficient reason for the weight afforded. Id.

         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), 416.927(c). However, those same regulations specifically vest the ALJ - not the treating source - with the authority to determine whether a claimant is disabled as that term is defined under the Act. §§ 404.1527(d)(1), 416.927(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 06-3p.

         When the Appeals Council makes a decision and issues its own opinion, as it did here, it must follow the same rules for considering opinion evidence as the ALJ. Meyer, 662 F.3d at 705-06; see §§ 404.1513a(c), 416.913a(c) (instructing Appeals Council to evaluate prior administrative medical findings according to same rules that ALJ must follow).

         1. Dr. Laing's Opinion.

         Plaintiff argues that the Appeals Council erred in affording Dr. Laing's opinion limited weight, because Dr. Laing's opinion comports with treatment records regarding osteoarthritis in Plaintiffs knees. (Pl.'s Mem. at 10-11.) Defendant responds that substantial evidence supports the Appeals Council's decision to afford limited weight to Dr. Laing's opinion. (Mem. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") (ECF No. 14) at 21-24.)

         On February 15, 2015, Dr. Laing completed a medical source statement. (R. at 555-57.) Dr. Laing noted that Plaintiff experienced pain and a decreased range of motion in her right shoulder and both knees, as well as chest wall tenderness. (R. at 555.) Based on these findings and his treatment of Plaintiff, Dr. Laing opined that Plaintiffs impairments would last at least twelve months. (R. at 555.) Dr. Laing indicated that Plaintiff did not need an assistive walking device while occasionally standing or walking, and he opined that Plaintiff could stand or walk for up to two hours and sit for four hours during an eight-hour workday with normal breaks and the ability to shift between sitting, standing and walking at will. (R. at 555-56.) Dr. Laing further opined that Plaintiff could rarely lift less than ten pounds, never lift twenty pounds, rarely twist and climb stairs, and never stoop, bend, crouch, squat or climb ladders. (R. at 556.) Dr. Laing found that Plaintiff had significant limitations in reaching, and he estimated that Plaintiff could reach (including reaching overhead) 10 percent of the time, use her hands to grasp, turn and twist objects 50 percent of the time and use her fingers for fine manipulations 100 percent of the time. (R. at 556.) Dr. Laing opined that Plaintiffs pain and other symptoms would frequently interfere with the attention and concentration needed to perform simple work tasks and cause her to miss approximately three days of work per month. (R. at 557.) However, Dr. Laing believed that Plaintiff could tolerate low stress jobs. (R. at 557.)

         The ALJ afforded Dr. Laing's opinion great weight, because it comported with the record. (R. at 21-22.) The ALJ credited Dr. Laing's "firsthand exposure to and longitudinal understanding of... [Plaintiffs] functional abilities." (R. at 22.) The ALJ found that Plaintiffs history of invasive ...


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