Foster v. Colvin

Filing 19

ORDER Granting in part and denying in part 15 Plaintiff's Motion for Summary Judgment; Denying 18 Defendant's Motion for Summary Judgment; Vacating the Commissioner's denial of benefits; Remanding the case for further proceedings. Signed by Magistrate Judge Beth P. Gesner on 11/18/2015. (nd2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF

101 WEST LOMBARD STREET

BETH P. GESNER

BALTIMORE, MARYLAND 21201

UNITED STATES MAGISTRATE JUDGE

[phone]

November 18, 2015
Vincent J. Piazza, Esq.
The Disability Law Center
6716 Harford Rd
Baltimore, MD 21234

Subject:

Benjamin B. Prevas
Special Assistant United States Attorney
Social Security Administration
6401 Security Boulevard
Room 617
Baltimore, MD 21235

Robin Foster v. Carolyn Colvin, Acting Commissioner, Social Security
Civil No.: BPG-15-298

Dear Counsel:
Pending before this court, by the Parties’ consent (ECF Nos. 7, 16), are Plaintiff’s Motion
for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 15) and Defendant’s Motion for
Summary Judgment (“Defendant’s Motion”) (ECF No. 18). The undersigned must uphold the
Commissioner’s decision if it is supported by substantial evidence and if proper legal standards
were employed. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996) (superseded by statute on other grounds). I have reviewed the pleadings and the record in
this case and find that no hearing is necessary. Loc. R. 105.6. For the reasons noted below,
Plaintiff’s Motion (ECF No. 15) is granted in part and denied in part, Defendant’s Motion (ECF
No. 18) is denied, the Commissioner’s denial of benefits is vacated, and the case is remanded for
further proceedings consistent with this opinion.
I.

Background

On April 7, 2011, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits, and a Title XVI application for supplemental security income, both
alleging disability beginning on April 30, 2009. (R. at 12.) Her claim was denied initially on
August 18, 2011, and on reconsideration on December 5, 2011. (Id.) After a video hearing held
on August 7, 2013, an Administrative Law Judge (“the ALJ”) issued a decision on August 28,
2013 denying benefits based on a determination that Plaintiff was not disabled. (R. at 12-22.)
The ALJ found that Plaintiff had the following severe impairments: fibromyalgia,
depression, anxiety, and chronic obstructive pulmonary disease. (R. at 14.) Despite these
impairments, the ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of a listed impairment in 20 C.F.R. §
404, Subpart P, Appendix 1. (R. at 15.) The ALJ concluded that Plaintiff retained the residual
functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a),
except that she: (1) must avoid exposure to excessive smoke, dust, and fumes; (2) is limited to
performing simple, repetitive tasks; and (3) must avoid close interaction with the general public.
(R. at 17-20.)
The Appeals Council denied Plaintiff’s request for review on December 7, 2014, making

Foster v. Colvin
BPG-15-298
November 18, 2015
Page 2
the ALJ’s opinion the final and reviewable decision of the Commissioner. (Pl.’s Mot. at 2, ECF
No. 15.) Plaintiff challenges the Commissioner’s decision on three grounds. First, Plaintiff
argues that the ALJ failed to follow the treating physician rule and, thus, improperly evaluated
the medical opinion evidence presented. Second, Plaintiff argues that the ALJ failed to conduct
a function-by-function analysis in determining Plaintiff’s mental RFC. Finally, Plaintiff claims
that the ALJ erred by not addressing in the RFC assessment Plaintiff’s “moderate difficulties” in
concentration, persistence, or pace, as required by the Fourth Circuit’s decision in Mascio v.
Colvin, 780 F. 3d 632 (4th Cir. 2015).
II.

Discussion

First, Plaintiff argues that the ALJ erred by failing to follow the treating physician rule as
to the opinions of three of Plaintiff’s treatment providers: her psychiatrist Dr. Helsel; her
psychologist Dr. Whitten; and her primary care physician Dr. Higgs-Shipman. (Pl.’s Mot. at 9.)
Under the treating physician rule, the ALJ must generally give more weight to a treating
physician’s opinion. See 20 C.F.R. § 404.1527(c)(2). Where a treating physician’s opinion is
not supported by clinical evidence or is inconsistent with other substantial evidence, however, it
should be afforded significantly less weight. Craig, 76 F.3d at 590. Moreover, the ALJ is never
required to give controlling weight to a treating physician’s opinion on the ultimate issue of
disability. 20 C.F.R. § 404.1527(d)(1). If a treating source’s opinion is not given controlling
weight, the ALJ must consider the following factors in deciding what weight to give the opinion:
the length and frequency of treatment relationship, the nature and extent of treatment
relationship, supportability, consistency, specialization, and any other factors which tend to
support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(1-6). An ALJ need not apply these
factors in a mechanical fashion, so long as the ALJ articulates the reasoning behind the weight
accorded to the opinion. Carter v. Astrue, No. CBD-10-1882, 2011 WL 3273060, at *6 (D. Md.
July 27, 2011). In applying these factors, “[i]t is entirely appropriate for an ALJ to consider a
discrepancy between a treating physician's opinion and the provision of conservative treatment to
address a condition.” Norris v. Comm'r, Soc. Sec., No. CIV. WDQ-13-2426, 2014 WL 2612367,
at *4 (D. Md. June 9, 2014).
In reaching his mental RFC assessment, the ALJ reviewed the treatment records of Dr.
David Helsel, Plaintiff’s psychiatrist, and Dr. Durwood Whitten, Plaintiff’s psychologist. In his
analysis, the ALJ explained that Dr. Helsel and Dr. Whitten’s “assessments are given little
weight because it [sic] is inconsistent with the mild mental status examination findings from Dr.
Helsel’s and Dr. Whitten’s own treatment notes and with the conservative level of treatment
(Exhibits 3F, 6F, and 14F).” (R. at 20.)
The record reflects that the inconsistencies identified by the ALJ are supported by
substantial evidence. In Plaintiff’s Medical Assessment Report, dated October 11, 2011, Dr.
Helsel opined that Plaintiff “is irritable, cries spontaneously without provocation, easily
distracted, low energy” and that Plaintiff would be unable to withstand the stress and pressures of
a competitive work environment. (Ex. 11F, R. at 305.) Yet, Dr. Helsel’s treatment notes from
that same day state that: Plaintiff’s psychomotor activity is normal; her “speech is clear, coherent
and goal-directed;” her “mood is described by patient as fine;” “Thoughts are spontaneous and
appropriate;” her “Behavior was cooperative.” (Ex. 6F, R. at 293.)
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Similarly, Dr. Whitten opined in Plaintiff’s Medical Assessment Report, dated April 29,
2013, that Plaintiff’s “depression and anxiety frequently inhibit her ability to function on a
reliable basis day to day.” (Ex. 15F, R. at 344). Yet, Dr. Whitten’s treatment notes from April
26, 2013 state that, “Patient has made great strides in developing adaptive coping mechanisms.
She endorsed fewer anxiety episodes and fewer panic attacks over time,” and recommends only
“monthly maintenance of medication management and psychotherapy.” (Ex. 14F, R. at 317.) At
an earlier treatment session, Dr. Whitten had noted of Plaintiff that: “Appearance: Patient is well
developed, well nourished, in no apparent distress and with good attention to hygiene and body
habits. General Behavior: Overt behavior and psychomotor activity is within normal limits.
Mood: all right. Affect: Affect is full-ranged and appropriate.” (Ex. 14F, R. at 318.)
The inconsistencies between Dr. Helsel and Dr. Whitten’s Medical Assessment Reports
and their treatment notes are substantial evidence supporting the ALJ’s decision to attribute
“little weight” to their opinions when making the RFC determination. As the ALJ properly
considered such inconsistencies in reaching this administrative decision, it cannot be said that the
ALJ’s decision to attribute little weight to the opinions of Plaintiff’s mental health treatment
providers was erroneous. See Norris, 2014 WL 2612367, at *4.
With respect to Plaintiff’s physical RFC, the ALJ concluded that treating physician Dr.
Higgs-Shipman’s “assessment is given little weight because it is no [sic] supported by the mild
findings on physical examinations or by the conservative level of treatment (Exhibits 4F, 5F, and
16F).” (R. at 20.) While thus discrediting Dr. Higgs-Shipman’s conclusions, the ALJ did not
explain how Dr. Higgs-Shipman’s conclusions were unsupported by Plaintiff’s treatment history
or how the physician’s treatment was “conservative.” In deciding not to give controlling weight
to Dr. Higgs-Shipman’s opinion as Plaintiff’s treating physician, the ALJ should have more fully
explained his decision, based upon substantial evidence and the factors provided in 20 C.F.R. §§
404.1527(c)(1-6). 1 On remand, the ALJ should reevaluate Dr. Higgs-Shipman’s opinion in light
of the full record and explain why her opinion as treating physician should, or should not, be
disregarded.
Second, Plaintiff argues that the ALJ failed to conduct a function-by-function analysis, as
required by SSR 96-8p, in determining Plaintiff’s mental RFC. (Pl.’s Mot. at 16-17.) Defendant
asserts that an explicit function-by-function analysis is not required, so long as the ALJ “properly
assesses a claimant’s capacity to perform relevant work-related mental activities.” (Def.’s Mot.
at 14-15.) SSR 96-8p requires the ALJ to consider the functions outlined in paragraphs (b), (c),
and (d) of 20 CFR 404.1545 and 416.945. Those regulations direct the ALJ to consider, inter
alia, an applicant’s ability to “understand, carry out, and remember instructions; use judgment in
making work-related decisions; respond appropriately to supervision, co-workers and work
situations; and deal with changes in a routine work setting.” 20 CFR 404.1545(c). While the
Fourth Circuit has rejected a per se rule requiring remand where the ALJ does not perform an
explicit function-by-function analysis, the Court has found remand to be appropriate where it
was “left to guess about how the ALJ arrived at his conclusions on [Plaintiff’s] ability to perform
relevant functions…” Mascio v. Colvin, 780 F.3d 632, 637 (4th Cir. 2015). Here, while the ALJ
does discuss some medical evidence suggesting that Plaintiff would be able to function in the
1

While the record (R. at 346-90) reflects what might reasonably be described as a “conservative” course of
treatment, the ALJ does not explain what specific facts led him to that characterization.

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BPG-15-298
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Page 4
workplace, 2 the opinion does not directly address the specific, work-related functions outlined in
the regulations. Absent any such discussion, remand is appropriate. On remand, the ALJ should
address how the mental assessments he cites correspond with the specific work-related functions
outlined in 20 CFR 404.1545(c).
Finally, Plaintiff claims that the ALJ did not adequately evaluate Plaintiff’s “moderate
difficulties” in concentration, persistence, or pace, as required by Mascio v. Colvin. 780 F. 3d at
637-38. At step three of the sequential evaluation, the ALJ stated that, “With regard to
concentration, persistence or pace, the claimant has moderate difficulties.” (R. at 16.) As
explained in Mascio, when an ALJ determines that a Plaintiff has a moderate limitation in
concentration, persistence, or pace, the ALJ must explain why this limitation “does not translate
into a limitation in [Plaintiff’s] residual functional capacity.” Mascio, 780 F. 3d at 638. While
Mascio allows the ALJ to explain why difficulties in concentration, persistence, or pace
identified at step three do not translate into limitations in the RFC, the Court there held that
absent such an explanation, remand was necessary. Id. Here, while the ALJ did include
limitations of “must avoid exposure to excessive smoke, dust, and fumes,” “simple, repetitive
work,” and “must avoid close interaction with the public” in his RFC assessment, the ALJ did
not discuss Plaintiff’s “ability to stay on task.” Id. Thus, the ALJ’s failure to explain—or even
mention—Plaintiff’s previously identified difficulties in concentration, persistence, or pace is
grounds for remand.
III.

Conclusion

For the reasons stated above, Plaintiff’s Motion (ECF No. 15) is GRANTED IN PART
and DENIED IN PART, Defendant’s Motion (ECF No. 18) is DENIED, the Commissioner’s
denial of benefits is VACATED, and the case is REMANDED for further proceedings consistent
with this opinion.
Despite the informal nature of this letter, it will constitute an Order of the court and will
be docketed accordingly.

Very truly yours,
/s/
Beth P. Gesner
United States Magistrate Judge

2

In particular, the ALJ notes that: “On examination, the claimant’s psychomotor activity was normal and her speech
was clear, coherent, and goal-directed. Her thoughts were spontaneous and appropriate. She did not exhibit
abnormal or psychotic thoughts, perceptual disturbances, delusions, or suicidal thoughts. Her memory was intact.
Her fund of knowledge and intelligence were grossly average. Her judgment and insight were good and her
behavior was cooperative (Exhibit 6F, p. 3).” (R. at 18.)

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