Opinion
No. 7:19-CV-246-FL
02-08-2021
ANTHONY R. LEWIS, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Anthony R. Lewis ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of his application for a period of disability and disability insurance benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #17] be granted, Defendant's Motion for Judgment on the Pleadings [DE #21] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB on August 15, 2016, with an alleged onset date of October 15, 2014. (R. 15, 195-201.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 15, 83, 105, 138-39.) A hearing was held on October 29, 2018, before Administrative Law Judge ("ALJ") Christopher Willis, who issued an unfavorable ruling on February 11, 2019. (R. 12-69.) On November 1, 2019, the Appeals Council denied Plaintiff's request for review. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. On December 19, 2019, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide "whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job." Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). "If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act ("the Act"). As a preliminary matter, the ALJ found Plaintiff met the insured status requirements of the Act through June 2021. (R. 17.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since October 15, 2014, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff had the severe impairments of degenerative disc disease, "status-post ACDF [anterior cervical discectomy with fusion]," carpal tunnel syndrome, hypertension/tachychardia, hypothyroidism, depression, and anxiety. (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 18-21.) The ALJ expressly considered Listings 1.02, 1.04, 4.05, 11.14, 12.04, and 12.06. (Id.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), with the following provisos: he is limited to occasional
overhead reaching bilaterally, but frequent reaching in all other directions. He is limited to frequent handling, fingering, feeling, pushing, pulling and/or operating hand controls bilaterally. He can frequently climb ramps and stairs, but cannot climb ladders, ropes, or scaffolds. He can frequently balance, but occasionally stoop; he can frequently kneel and crouch, but occasionally crawl. He must avoid concentrated exposure to workplace hazards, such as dangerous machinery and unprotected heights. He is generally able to understand and perform simple, routine, repetitive tasks, and maintain concentration, persistence, and pace to stay on task for periods of 2 hours at [a] time over the course of a typical 8-hour workday in order to perform such tasks. He requires the flexibility of a sit/stand option that would allow him to change positions [every] 20 to 30 minutes while continuing to work.(R. 21-22 (footnote omitted).) In making this assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms "not persuasive of disability based upon the longitudinal medical and other evidence in the record." (R. 23.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 27-28.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: marker (DOT #209.587-034), photo copy machine operator (DOT #207.685-014), and router (DOT #222.587-038). (R. 28-29.) The ALJ concluded that Plaintiff had not been disabled under the Act since October 15, 2014, Plaintiff's alleged onset date. (R. 29.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) improperly assessing the opinion of a treating physician and assigning little weight to that opinion (Pl.'s Mem. Supp. Mot. J. Pldgs [DE #18] at 15-19);Arguments (C) and (D) depend on arguments (A) and (B) to the extent they contend the ALJ should have given more weight to the treating physician's opinion and FCE. (See Def.'s Mem. Supp. Mot. J. Pldgs. [DE #22] at 13-14.) These arguments are therefore addressed in conjunction with Plaintiff's first two arguments. The Commissioner contends ALJ Willis correctly evaluated the opinion of Dr. Blake Moore, M.D., Plaintiff's treating physician, and properly assigned little weight to the FCE findings. (Id. at 6-13.) The undersigned disagrees with the Commissioner for the reasons explained below and, therefore, recommends remand.
(B) insufficiently explaining the assignment of little weight to a functional capacity evaluation ("FCE") which limited Plaintiff's RFC to the sedentary exertional level (id. at 19-20);
(C) determining that Plaintiff had the RFC to perform a reduced range of light work (id. at 20); and
(D) determining that there were sufficient numbers of jobs in the national economy that Plaintiff could perform (id. at 21).
A. Treating Physician Opinion
Plaintiff argues the ALJ failed to properly weigh the opinion of Plaintiff's treating physician, Dr. Blake Moore. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 15-19.) In contrast, the Commissioner contends the ALJ properly evaluated Dr. Moore's opinion. (Def.'s Mem. Supp. Mot. J. Pldgs. at 6-11).
Under the applicable regulations, evaluation of treating physician opinions has two steps. First, if the medical opinion of a treating physician is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record," the opinion is entitled to controlling weight. Dowling v. Comm'r of SSA, ___ F.3d ___, ___, 2021 WL 203371, at *4 (4th Cir. 2021) (quoting 20 C.F.R. § 404.1527(c)(2); citing Arakas v. Comm'r of SSA, 983 F.3d 83, 106-07 (4th Cir. 2020), and Brown v. Comm'r of SSA, 873 F.3d 251, 255-56 (4th Cir. 2017)). "Second, if a medical opinion is not entitled to controlling weight under the treating physician rule, an ALJ must consider each of the [] factors" under 20 C.F.R. § 404.1527(c)(2)(i)-(6). Dowling, 2021 WL 203371, at *4. Thus, if controlling weight is not assigned to a treating physician's opinion, the ALJ must consider each factor in 20 C.F.R. § 404.1527(c)(2)(i)-(6) when deciding how much weight to give the opinion. Id. at *4-5. "While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion." Id. at *5 (citing Arakas, 983 F.3d at 107 n.16, and Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000)).
Plaintiff's claim was filed before March 27, 2017, thereby making 20 C.F.R. § 404.1527 applicable. See Dowling v. Comm'r of SSA, ___ F.3d ___, ___, 2021 WL 203371, at *4 n.8 (4th Cir. 2021).
Here, ALJ Willis explained the weight he gave Dr. Moore's opinion as follows:
The undersigned gives little weight to the opinion of Dr. Blake Moore (Exhibit 22F). Amongst other statements, Dr. Moore stated it seemed
immediately clear to him [Plaintiff] could never return to work as a correctional officer, he is able to stand and walk less than 2 hours in a workday, lift a maximum of 10 pounds, has limited ability to reach and handle, he is "legally drunk" due to medication, has limited ability to sustain concentration and handle stress, and is ultimately incapable of performing full time employment. Dr. Moore made clear in his letter that the statement was drafted by [Plaintiff]'s law firm. Moreover, whether [Plaintiff] is "disabled" is a determination reserved to the Commissioner (20 CFR 404.1527(e) and SSR 96-5p). More importantly, the evidence, including Dr. Moore's records, fails to support the extent of the limitations he cites, such as medication side effects, despite his references to cloudiness and drowsiness.(R. 26-27.) This explanation does not comply with the required evaluation procedure described above.
SSR 96-5p, 1996 WL 374183 (July 2, 1996), has been rescinded for claims filed on or after March 27, 2017. 82 Fed. Reg. 15,263 (Mar. 27, 2017).
Without determining whether the analysis sufficiently explains why Dr. Moore's opinion was not given controlling weight, it is not apparent that ALJ Willis considered each factor identified in 20 C.F.R. § 404.1527(c)(2)(i)-(6) when deciding to assign "little weight" to Dr. Moore's opinion. See Dowling, 2021 WL 203371, at *4-5 (explaining that an ALJ's decision not to assign controlling weight to a treating physician's opinion was acceptable, but the ALJ's failure to consider each factor in the regulations when deciding how much weight to assign the opinion required remand). In particular, it is not apparent from ALJ Willis' explanation how he weighed the length of Dr. Moore's relationship with Plaintiff and the frequency of Dr. Moore's examinations of Plaintiff, the nature and extent of the relationship between Dr. Moore and Plaintiff, and the consistency of Dr. Moore's opinion in the context of other evidence in the record. See 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (4). Furthermore, if Dr. Moore's opinion was unclear to the ALJ, it was incumbent upon the ALJ to contact Dr. Moore for clarification. See SSR 96-5p, 1996 WL 374183, at *2 ("For treating sources, the rules also require that we make every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us.").
On review, Plaintiff argues that ALJ Willis' analysis is infected by improper reliance on the fact that Dr. Moore's opinion letter was drafted or prepared by Plaintiff's counsel. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 16-17.) In response, the Commissioner advances several post-hoc arguments. (Def.'s Mem. Supp. Mot. J. Pldgs. at 7-9.) The Commissioner also argues that Dr. Moore's opinion is inconsistent with his own treatment notes and treatment notes from another doctor, and that numerous treatment notes support the RFC. (Id. at 10-11 (citing specific sections of the record).) There are several problems with the evaluation of Dr. Moore's opinion which necessitate remand.
The Commissioner argues (a) the ALJ was justified in discounting the weight given to Dr. Moore's opinion letter because "Dr. Moore's precise words and conclusions are not known" and the letter only provides "the conclusions drawn by counsel and 'signed' off on by the physician"; (b) the terminology used in Dr. Moore's letter "makes for a good read in a novel, but [] is not how a physician speaks when giving a medical opinion" and thus "leaves the reader (in this case the ALJ) somewhat skeptical about where the physician statements end and the attorney statements begin"; (c) it is "odd" that Dr. Moore would make statements regarding Plaintiff's purported post-traumatic stress disorder and ability to concentrate and manage stress given that Dr. Moore is not a mental health professional and such an opinion regarding Plaintiff's mental health "appears to be a spoon-fed conclusion by counsel"; (d) the intent of the regulation which requires a claimant's representative to disclose whether a medical opinion was drafted or prepared by the representative, 20 C.F.R. § 404. 1740(b)(5), is "so that the ALJ can determine if the words were spoon-fed or the physician's words" such that "a more critical look at the words is warranted"; and (e) it "seems clear that [Plaintiff's] counsel re-wrote the words (no doubt with similar meaning, just no longer the physician's words) or asked very leading questions, all for the purpose of making a case for disability, not to indicate the physician's actual belief about [Plaintiff's] condition." (Def.'s Mem. Supp. Mot. J. Pldgs. at 7-9.)
These are all posthoc justifications not offered by the ALJ. Moreover, neither the text of 20 C.F.R. § 404.1740 nor the rulemaking history referenced infra at note 5 make clear that the intent of this regulation is what the Commissioner suggests. However, even assuming that is the intent of the regulation, ALJ Willis did not undertake this more critical analysis propounded by the Commissioner.
First, it is not clear from ALJ Willis' analysis whether he discounted Dr. Moore's opinion letter because it was drafted by Plaintiff's counsel. (See R. 26-27.) The ALJ only says that Dr. Moore clearly stated that the letter was drafted by Plaintiff's law firm; ALJ Willis never says that he is giving the opinion less weight because it was drafted by Plaintiff's counsel. (Id.) The parties' lengthy and speculative discussion of this issue highlights the core problem with ALJ Willis' analysis—it simply is not clear what ALJ Willis' reasons were for discounting Dr. Moore's opinion. The only analysis provided by the ALJ appears to be that "the evidence, including Dr. Moore's records, fails to support the extent of the limitations [Dr. Moore] cites, such as medication side effects, despite his references to cloudiness and drowsiness." (R. 27.) This is too general and vague to permit meaningful review, particularly given the "robust" nature of the treating physician rule. See Arakas, 983 F.3d at 106-07 (concluding that an ALJ's statement that "the lack of substantial support from the other objective evidence of record" made a treating physician's opinion "less persuasive" precluded meaningful review and noting the robustness of the treating physician rule).
The court need not reach the issue of whether this is a valid reason for discounting a medical opinion drafted or prepared by a claimant's representative because the ALJ's analysis here is too vague to identify that as a reason for the ALJ's assignment of little weight to Dr. Moore's opinion.
Social Security regulations now require a claimant's representative to disclose when the representative participated in the drafting or preparation of a medical opinion. 20 C.F.R. § 404.1740(b)(5)(i). And representatives are prohibited under the regulations from making false or misleading statements in connection with a claim, id. at § 404.1740(c)(3), (7)(ii)(B), or failing to comply with the regulations, id. at § 404.1740(c)(9). The language at issue in Dr. Moore's statement appears to have been included by counsel in an effort to comply with the regulations.
This regulation became effective on August 1, 2018. 83 Fed. Reg. 30,849 (July 2, 2018). The Notice of Proposed Rulemaking specifically discussed the regulation that eventually became 20 C.F.R. § 404.1740(b)(5). 81 Fed. Reg. 54,520, 54521-22 (Aug. 16, 2016). The Notice of Final Rule also discussed this particular regulatory change. 83 Fed. Reg. at 30,851.
The Commissioner's arguments about the terminology used in the letter and concerns about the underlying meaning of Dr. Moore's opinions appear nowhere in ALJ Willis' opinion. Thus, they are prohibited post-hoc justifications. See Arakas, 983 F.3d at 109 (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962), Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013), and Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)); Patterson v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (reviewing court may only affirm an ALJ's decisions based on the reasons the ALJ provided); DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) ("It may be, of course, as the Secretary suggests on appeal, that the ALJ considered all of these factors and proposed to himself cogent reasons for disregarding them. However, on this record we cannot so determine.").
Additionally, ALJ Willis did not specify which inconsistencies in the record justified deviation from the treating physician rule. See Dowling, 2021 WL 203371, at *5 (discussing an ALJ's decision to discount a treating physician's opinion because "he found the opinion to be inconsistent with other evidence in the record, and the basis for the opinion was 'not adequately explained'"). Such failure precludes meaningful review, and the Commissioner's post-hoc explanations cannot fix this problem.
For the foregoing reasons, ALJ Willis did not evaluate the opinion of Plaintiff's treating physician in accord with applicable regulations and Fourth Circuit precedent. Therefore, the undersigned recommends remand to the Commissioner.
B. Functional Capacity Evaluation
Plaintiff also argues the ALJ improperly weighed the results of an FCE that concluded Plaintiff was limited to sedentary work with exertional limitations. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 19-20.) The Commissioner contends ALJ Willis appropriately considered the FCE and included appropriate limitations in the RFC. (Def.'s Mem. Supp. Mot. J. Pldgs. at 11-13.)
Plaintiff underwent an FCE over the course of two days in the spring of 2016. (R. 583-91.) His performance was limited by tachychardia on the first day of testing. (R. 585.) ALJ Willis assigned the exertional limitations in the FCE little weight "because the longitudinal medical evidence undermines the findings of this one-time exam." (R. 27.) The ALJ did not explain what particular evidence he relied on to reach this conclusion. (Id.)
On review, the Commissioner offers good reasons to discount the findings of the FCE—e.g., the examiner understandably exercised caution due to Plaintiff's tachychardia on the first day of testing, which likely reduced the reliability of the evaluation's results; the sedentary exertional level finding from the FCE is not inconsistent with the significantly reduced level of light exertional activity assessed in the RFC; treatment notes in the record indicate less restrictive abilities, and more recent medical records from treating doctors in 2017 and 2018 do not indicate problems with tachychardia. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 12-13.)
The reasons offered by the Commissioner were not provided by ALJ Willis, though, and may not be considered on review. See Arakas, 983 F.3d at 109; Patterson, 839 F.2d at 225 n.1; DeLoatche, 715 F.2d at 150. Furthermore, some of the limitations in the FCE appear consistent with Dr. Moore's opinion letter discussed above, and Plaintiff himself testified to continuing issues with tachychardia (R. 48), which ALJ Willis identified as a severe impairment (R. 17). Given the sparse explanation offered by the ALJ, in conjunction with the ALJ's evaluation of Dr. Moore's opinion, the undersigned recommends remand based on this issue, as well.
"A 'severe' impairment within the meaning of the regulations is one that 'significantly limits . . . [a claimant's] physical or mental ability to do basic work activities.'" Ware v. Berryhill, No. 5:15-CV-614-D, 2017 WL 1013123, at *3 (E.D.N.C. Feb. 7, 2017) (quoting 20 C.F.R. §§ 404.1520(c), 416.920(c) (alteration in original)), mem. and recommendation adopted, No. 5:15-CV-614-D, 2017 WL 1013000 (E.D.N.C. Mar. 14, 2017). --------
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #17] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #21] be DENIED, and the Commissioner's decision be remanded for further consideration.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 22, 2021, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. (Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 8th day of February 2021.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge