Mullen v. Colvin

Filing 27

ORDER granting 19 Motion for Judgment on the Pleadings and denying 22 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 8/8/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:16-CV-27-BO

JAMES MULLEN,
Plaintiff,
V.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on July 24, 2017, in Raleigh, North
Carolina. For the reasons discussed below, the decision of the Commissioner is reversed.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying his claim for disability and disability insurance
benefits ("DIB") pursuant to Title II of the Social Security Act. Plaintiff protectively filed his
application on March 15, 2013, with amended alleged disability onset date beginning September
18, 2008. After initial denials, a hearing was held before an Administrative Law Judge ("ALJ")
who issued an unfavorable ruling. The decision of the ALJ became the final decision of the
Commissioner when the Appeals Council denied plaintiffs request for review. Plaintiff then
timely sought review of the Commissioner's decision in this Court.

DISCUSSION
Under the Social Security Act, 42 U.S.C. §§ 405(g), and 1383(c)(3), this Court's review
of the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evid_ence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted).
An individual is considered disabled if he is unable "to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial
gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation
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process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision
regarding disability can be made at any step of the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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At step one, if the Social Security Administration determines that the claimant is
currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination of impairments. If the claimant has
a severe impairment, it is compared at step three to those in the Listing of Impairments
("Listing") in 20 C.F .R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively presumed. If not, at step four, the claimant's
residual functional capacity ("RFC") is assessed to determine if the claimant can perform his past
relevant work. If so, the claim is denied. If the claimant cannot perform past relevant work, then
the burden shifts to the Commissioner at step five to show that the claimant, based on his age,
education, work experience, and RFC, can perform other substantial gainful work. If the
claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R.
§ 416.920(a)(4).
At step one, the ALJ determined that plaintiff met the insured status requirements and
had not engaged in substantial gainful activity since his alleged onset date. Plaintiffs
degenerative disc disease of the lumbar and cervical spine and muscle cramping were considered
severe impairments at step two, but were not found alone or in combination to meet or equal a
listing at step three. The ALJ concluded that plaintiff had the RFC to perform sedentary work
with additional exertional limitations. The ALJ then found that plaintiff was unable to return to
his past relevant work but that, considering plaintiffs age, education, work experience, and RFC,
there were other jobs that existed in significant numbers in the national economy that plaintiff
could perform such as dowel inspector, fabric cutter and assembly press operator. Thus, the ALJ
determined that plaintiff was not disabled under the Act.

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An ALJ makes an RFC assessment based on all of the relevant medical and other
evidence. 20 C.F.R. § 404.1545(a). An RFC should reflect the most that a claimant can do,
despite the claimant's limitations. Id. An RFC finding should also reflect the claimant's ability to
perform sustained work-related activities in a work setting on regular and continuing basis,
meaning eight-hours per day, five days per week. SSR 96-8p; Hines v. Barnhart, 453 F.3d 559,
562 (4th Cir. 2006). The ALJ must "explain how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved." SSR 96-8p. If an opinion from a
treating source is well-supported by and consistent with the objective medical evidence in the
record, it may be entitled to controlling weight. 20 C.F.R. §§ 404.1527(c), 416.927(c). Where an
opinion is inconsistent with other evidence in the record, the ALJ need not give that opinion any
significant weight. Id.; see also Craig v. Chafer, 76 F.3d at 585, 590 (4th Cir. 1996) ("[I]f a
physician's opinion is not supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less weight."). However, ALJ's decision
to do so must be accompanied by "a narrative discussion" that discusses "how the evidence
supports each conclusion," such that the ALJ's decision is sufficiently specific to make it clear to
a reviewing district court "why the opinion was not adopted." See SSR 96-8p. Though an ALJ is
entitled to resolve inconsistencies between examining medical opinions, SSR 96-8p, 1996 WL
374184, at *7, the ALJ's decision must be supported by substantial evidence, and must
adequately address the opinions of treating and consulting physicians and properly explain
deviancies between her opinion and the record evidence.
The ALJ' s decision in this instance is not supported by substantial evidence. The ALJ
found plaintiff capable of sedentary work, except that he is limited to occasional postural
activities and only occasional flexion, extension and rotation of the neck. This conclusion is not

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supported by the record, because the ALJ improperly discounted the evidence of plaintiffs
psychiatric impairments and improperly evaluated the effects of plaintiffs pain and difficulties
with social functioning on his ability to perform work related activities.
First, the ALJ improperly weighed the VA disability determination. The VA found
plaintiff 100% disabled due to his major depressive disorder with psychotic features within the
relevant timeframe. Tr. at 240. The VA also assigned several other ratings for his physical
impairments. Tr. at 240-41. However, the ALJ gave little weight to the VA disability rating for
plaintiffs mental disorders, stating that the VA rating "differs significantly from the
undersigned's obligation to consider all impairments, regardless of origin and to address with
functional specificity how the claimant's vocational capacities are affected," and also stating that
the VA decision failed to explain the basis upon which the percentages were assigned. Tr. at 26.
For these reasons, the ALJ gave the VA rating of complete disability only "some credibility as a
general indicator of the severity of any particular impairment." Id. Although not binding on the
Commissioner, disability decisions by other governmental agencies "cannot be ignored and must
be considered" in making a disability determination. S.S.R. 06-03p, 2006 WL 2329939, at *6
(Aug. 9, 2006). Additionally, the Fourth Circuit has held that "in making a disability
determination, the SSA must give substantial weight to a VA disability rating." Bird v.

Commissioner, 699 F.3d 337, 343 (4th Cir. 2012). Only where the ALJ points to clear reasons
for deviation can the ALJ give less weight to a VA rating. Id. The ALJ did not do so here, and
his disregard of the rating was therefore in error.
First, the ALJ failed to make clear what portions he found credible or not credible and
why, frustrating meaningful review. Further, "simply noting the fact that the VA and SSA
employ different standards, in and of itself, is insufficient to justify deviation under Bird."

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Pridgen v. Colvin, 4:15-CV-95-F, 2016 WL 4047058, at *3-4 (E.D.N.C. Jun. 30, 2016) (adopted
Jul. 27, 2016). Simply noting that the VA and SSA employ different standards is insufficient to
justify a decision to not afford the rating substantial weight and does not explain why or how the
rating is not supported by the record evidence. Essentially, the ALJ failed to adequately explain
his deviation from the normal weight given to a government agency determination of disability
or why he believed the record evidence did not support the rating.
Further, the ALJ did not develop the record and procure the more detailed explanation

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the rating, despite referring to that rating and explanation in his opinion. "[T]he ALJ has a duty
to explore all relevant facts and inquire into the issues necessary for adequate development of the
record, and cannot rely only on the evidence submitted by the claimant when that evidence is
inadequate." Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). Here, without reviewing the
determination, the ALJ had an insufficient basis for assigning it little weight, nor could the ALJ
determine that deviation therefrom was appropriate. Accordingly, the Court finds that it was in
error for the ALJ not to review the VA disability determination. See Dixon v. Colvin, 7:15-CV221-BO, 2016 WL 3080795, at *2 (E.D.N.C. May 31, 2016).
Finally, the record evidence does not support a deviation from the VA rating of complete
disability based solely on plaintiff's mental impairments. The ALJ made this determination only
after disregarding the other evidence in the record supporting the rating. However, as discussed
below, this evidence which was discounted-primarily the medical opinion of Dr. Myers and
plaintiff's own testimony-was entitled to more weight than that given by the ALJ and therefore
the VA rating was supported by the record evidence.
In reviewing the ALJ's opinion, it appears that the ALJ disregarded or gave little weight
to every medical opinion, except for perhaps that of Dr. Pollack, a medical expert who testified

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at the hearing. However, Dr. Pollack is a neurologist and not qualified to give medical opinions
in the field of psychiatry. Additionally, the State Agency psychiatric analysists apparently did
not have the full scope of Dr. Myers' treatment records, and therefore did not have adequate
evidence upon which to form an opinion as to plaintiffs mental functioning. Dr. Myers was
therefore the only treating psychiatric specialist on the record, and the only expert on record able
to fully opine on plaintiffs mental functioning. However, despite being a treating physician and
the only psychiatric expert able to testify from first-hand knowledge or from the full scope of
treatment sought by plaintiff, Dr. Myers' opinion was discounted and given "little weight" by the
ALJ. Tr. at 26. This was in error.
Dr. Myers opined that plaintiff suffered from moderate to severe impairment in social
functioning and suffered from significant deficiencies in concentration, persistence and pace
which could prevent him from performing tasks in a timely manner. Additionally, Dr. Myers
found that plaintiff had severe impairment in his ability to appropriately work around even
coworkers and supervisors and that his ability to maintain activities within a schedule would be
severely impaired. Tr. 655-57. The ALJ faulted Dr. Myers for "draw[ing] no connection from
her notes to the opined limitations," Tr. at 26, and yet these conclusions she opined are consistent
with her treatment notes which expliCitly detail difficulties plaintiff reported to Dr. Myers such
as continued self-isolation, difficulty interacting with others, difficulty leaving his house,
significant depression, frequently losing his temper, crying spells and starting fights due to
irritability. Tr. at 663-82. On further examination, Dr. Myers found that plaintiff consistently
presented a depressed mood, restricted affect, and irritability and passive suicidal ideation. Id.
Finally, Dr. Myers noted that plaintiff had only been partially responsive to medication and thus
his prognosis was only guarded. Tr. at 658.

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Defendant argues that the ALJ properly discounted the opinion of Dr. Myers because
-there were gaps in her treatment history with plaintiff, because she only filled out a checkbox
form, and because a state agency psychiatrist, Dr. Newman, opined that there was insufficient
evidence to establish the existence of a severe mental impairment prior to plaintiffs date last
insured.
As to the opinion of Dr. Newman, it is strange for defendant to cite this as support for the
ALJ's decision to accord Dr. Myers' opinion little weight, because the ALJ stated that Dr.
Newman was unable to assess plaintiffs RFC due to "insufficient evidence," Tr. at 25, and
apparently gave that opinion little or no weight and never discussed it any further in his RFC
analysis opinion. Therefore, that opinion has little value to the RFC analysis and cannot be used
to discount the opinion of other treating physicians.
As to the other reasons given for discounting Dr. Myers' opinion, those reasons alone do
not support the RFC finding that plaintiff has no limitations arising from his mental disorders.
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The relevant time period in this case is up to December 31, 2010, therefore, the fact that Dr.
Myers was not the doctor treating plaintiff from 2011-12 is of limited relevance. The record
shows that Dr. Myers' examined plaintiff a total of 25 times since August of 2006 which is more
than enough exposure to form an expert opinion on his mental functioning. Additionally,.
although Dr. Myers' opinion alone might not be sufficient to sustain a finding of severe mental
limitations, the facts that Dr. Myers' opinion was based on long-term treatment, that it was not
contradicted by any other medical opinion in the record, and the fact that another independent
government agency had found plaintiff completely disabled based on those same mental
limitations, all buttress Dr. Myers' opinion and its conclusions should have been incorporated
into the ALJ' s RFC assessment.

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Finally, the Court notes that the ALJ also found plaintiffs mental limitations not severe,
and thereafter discounted the opinion of Dr. Myers, by concluding that "follow up appointments
were two to three month apart. Logic dictates that a severe impairment would require more
frequent follow up treatment." Tr. at 21. He also stated that "[t]he claimant alleges that he had
anxiety attacks and self-isolated himself. However, he reported that he was able to perform
household chores and prepare his own meals." Id. Defendant further argues that these
conclusions are justified by other record evidence, pointing to a single vacation taken by plaintiff
to Disney as evidence that his mental limitations are non-severe. These are unwarranted
speculations. Even taking a trip to Disney, Tr. at 734, is not, as defendant argues, inconsistent
with his allegation that he experiences anxiety attacks around others and self-isolates as a result.
A single vacation does not indicate that plaintiff does not have severe mental limitations, and
there is nothing in the record medical evidence to show why or how performing household
chores or making meals within one's own home indicates a lack of social functioning deficits.
These are each the ALJ's own speculations that were not opined by a medical expert, and the
ALJ provided no justification based in record medical evidence for these conclusions except to
say that they are "logical" or "common sense." That was in error, and frustrated a full-analysis of
plaintiffs mental limitations when making his RFC assessment.
The ALJ also committed error by failing to clarify upon what basis he discounted
plaintiffs subjective complaints of pain as part of his analysis of plaintiffs residual functional
capacity. The ALJ wrote that that "[b]ecause it would be speculative, the undersigned declines to
find with specificity the extent to which the claimant's productivity capacity is reduced by his
physical impairments and pain." Tr. at 28-29. This statement is contrary to the ALJ's obligations
because, as the Fourth Circuit noted in Mascio, "a claimant's pain and residual functional

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capacity are nor separate assessments to be compared with each other. Rather, an ALJ is required
to consider a claimant's pain as part of his analysis of residual functional capacity." Mascio v.
Colvin, 780 F.3d 632, 639 (4th Cir. 2015). In evaluating a claimant's subjective complaints of

pain, the ALJ is not to require objective clinical evidence of the existence and intensity of such
pain. Instead, once a claimant has "met [his] threshold obligation of showing by objective
medical evidence a condition reasonably likely to cause the pain claimed," the claimant is then
"entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that
[his] pain is so continuous and/or so severe as to prevent [him] from working a full eight hour
day." Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006). Indeed, "[b]ecause pain is not
readily susceptible of objective proof ... the absence of objective medical evidence of the
intensity, severity, degree or functional effect ofpain is not determinative." Hines, 453 F.3d at

564-65 (emphasis in original).

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Plaintiff testified that he could not perform a sedentary job because he had to constantly
change positions between sitting and standing due to pain. Tr. at 96. Additionally, as the Medical
Expert testified, plaintiffs depression and pain could be expected to exacerbate each other, Tr. at
55, and thus would lead to a reduced capacity to work than the ALJ found. Although the ALJ
discussed the medical evidence of plaintiffs physical limitations and why they did not support
plaintiffs subjective complaints of pain, it is unclear to what extent the ALJ discounted
plaintiffs complaints because of their lack of support in the record evidence or because it would
be "subjective" to engage in such analysis. Such an ambiguity in the opinion frustrates
meaningful review and would normally warrant remand for a new hearing.
However, because the VA rated plaintiff 100% disabled based upon mental limitations
alone, because his treating psychiatrist opined that that he suffered a disabling mental disorder,

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and because plaintiffs treatment records are consistent with significant mental health disorders
and no medical expert opined that plaintiff did not suffer a significant mental health disorder, the
record appears sufficiently clear and settled such that remand is not necessary.
Plaintiffs physical impairments limited him to a severely reduced range of sedentary
work. Tr. at 23. This, as the regulations note, expresses an already significantly eroded
occupational base. Properly taking into account plaintiffs mental limitations, as indicated by the
VA rating of complete disability, the opinion of his treating psychiatrist, and the absence of any
contradictory expert opinion, the only possible conclusion is that plaintiffs already significantly
eroded occupational base would be further eroded to such an extent that he could no longer find
substantially gainful work in the economy. As such, the only possible conclusion upon this
record is that plaintiff is disabled within the meaning of the Act.
Reversal for Award of Benefits
The decision of whether to reverse and remand for benefits or reverse and remand for a
new hearing is one that "lies within the sound discretion of the district court." Edwards v.
Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987); see also Evans v. Heckler, 734 F.2d 1012, 1015
(4th Cir. 1984). When "[o]n the state of the record, [plaintiffs] entitlement to benefits is wholly
established," reversal for award of benefits rather than remand is appropriate. Crider v. Harris,
624 F.2d 15, 17 (4th Cir. 1980). The Fourth Circuit has held that it is appropriate for a federal
court to "reverse without remanding where the record does not contain substantial evidence to
support a decision denying coverage under the correct legal standard and when reopening the
record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012
(4th Cir. 1974). Remand, rather than reversal, is required, however, when the ALJ fails to

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explain his reasoning and there is ambivalence in the medical record, precluding a court from
"meaningful review." Radfordv. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
The Court in its discretion finds that reversal and remand for an award of benefits is
appropriate in this instance as the ALJ has clearly explained the basis for his decision and there
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is no ambivalence in the record. The record properly supports a finding that plaintiff is disabled
under the Act. Accordingly, there is no benefit to be gained from remanding this matter for
further consideration and reversal is appropriate.
CONCLUSION
Accordingly, plaintiffs motion for judgment on the pleadings [DE 19] is GRANTED and
defendant's motion [DE 22] is DENIED. The decision of the ALJ is REVERSED and the matter
is REMANDED to the Commissioner for an award of benefits.

SO ORDERED, this~ day of August, 2017.

T
NCE W. BOYLE
UNITED STATES DISTRICT J

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