Quate v. Colvin

Filing 27

ORDER granting 20 Motion for Judgment on the Pleadings and denying 25 Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner for further proceedings consistent with this order. Signed by US Magistrate Judge Robert B. Jones, Jr. on 9/27/2017. Copy of order sent to Paula Guffey Quate, 6140 Carolina Beach Road TRLR 46, Wilmington, NC 28412 via US Mail on 9/27/2017. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-96-RJ
PAULA GUFFEY QUATE,

)

Plaintiff/Claimant,

)
)
)
)
)
)

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

ORDER

)
)
)
)

This matter is before the court on the parties' cross-motions for judgment on the
pleadings [DE-20, DE-25] pursuant to Fed. R. Civ.

P. 12(c). Claimant Paula Guffey Quate

("Claimant"), proceeding pro se, filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3)
seeking judicial review of the denial of her applications 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, Claimant's Motion for Judgment on the
Pleadings is allowed, Defendant's Motion for Judgment on the Pleadings is denied, and the· case
is remanded to the Commissioner for further proceedings consistent with this Order.

I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on March 5,
2010, alleging disability beginning February 15, 2010. (R. 908-83). Her claim was denied
initially and upon reconsideration. (R. 66-93, 96-103). A hearing before Administrative Law
1

Judge ("ALJ") Augustus C. Martin was held on November 17, 2011, at which Claimant was
represented by counsel and a vocational expert ("VE") appeared and testified. (R. 32-65). On
December 9, 2011, ALJ Martin issued a decision denying Claimant's request for benefits. (R.
14-31).

On February 14, 2012, the Appeals Council ("AC") denied Claimant's request for

review. (R. 1-5). On April 13, 2012, Claimant filed an action in this court, and on June 5, 2013,
the court allowed Claimant's motion for judgment on the pleadings, remanding the case to the
Commissioner for the fyrther proceedings because the ALJ failed to adequately evaluate the
opinion of Erin Williamson, a nurse practitioner, and for consideration of new and material
evidence. (R. 858-63); Quate v. Colvin, No. 7:12-CV-92-BO ("Quate I") (E.D.N.C. June 5,
2013) (Boyle, J.).
On January 27, 2015, ALJ Carl B. Watson held a second hearing, at which Claimant,
represented by counsel, and a VE appeared and testified. (R. 803-39). On March 20, 2015, ALJ
Watson issued an unfavorable decision.

(R. 781-802).

On August 28, 2015, the AC

incorporated new evidence into the record and then issued additional findings and analysis,
determining that Claimant's arguments did not provide a basis for disturbing the ALJ' s decision.
(R. 497-504). Claimant then filed a complaint in this court seeking review of the now-final
administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under
the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., 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). "The findings of the Commissioner ... as to any fact, if supported by
2

substantial evidence, shall be conclusive .... " 42 U.S.C. § 405(g). Substantial evidence is
"evidence which a reasoning mind would accept as sufficient to support a particular conclusion."

Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large
or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is
"more than a mere scintilla ... and somewhat less than a preponderance." Laws, 368 F.2d at
642.

"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 v. Chafer,
76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. §
416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is
limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her
findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set
forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e.,
currently working; and (2) must have a "severe" impairment that (3) meets or
exceeds [in severity] the "listings" of specified impairments, or is otherwise
incapacitating to the extent that the claimant does not possess the residual
functional capacity to (4) perform ... past work or (5) any other work.

Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim
fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v.

Chafer, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted).

The burden of proof and

production during the first four steps of the inquiry rests on the claimant. Id At the fifth step,
3

.'·'

the burden shifts to the ALJ to show that other work exists in the national economy which the
claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance
with the "special technique" described in 20 C.F.R. § 404;_1520a(b)-(c). This regulatory scheme
identifies four broad functional areas in which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairment(s): activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decompensation. Id. § 404.1520a(c)(3). The
ALJ is required to incorporate into his written decision pertinent findings and conclusions based
on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges that the ALJ erred in the RFC formulation by improperly
evaluating the medical opinion evidence and Claimant's· credibility, and in determining that
Claimant could perform her past relevant work. Pl.'s Mem. [DE-21] at 7-13.
IV. FACTUAL IDSTORY
A.

ALJ' s Findings

Applying the above-described sequential evaluation process, the ALJ found Claimant
"not disabled" as defined in the Act prior to her date last insured of December 31, 2013. At step
one, the ALJ found Claimant was no longer engaged in substantial gainful employment. (R.
786). Next, the ALJ determined Claimant had the following severe impairments: degenerative
disc disease to the cervical and lumbar spine, hepatitis C, asthma, obesity, residuals from right
rotator cuff tear and partial right biceps tears, and early degenerative joint disease to the right
shoulder.

Id.

The ALJ also found Claimant had the following non-severe impairments:

gastroenteritis, a history of carpal tunnel syndrome, vision problems, dermatitis, acute renal
failure resolved, and depression.

Id.

However, at step three, the ALJ concluded these
4

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, Appendix 1. (R. 787-88).
Applying the technique prescribed by the regulations, the ALJ found that Claimant's depression
has resulted in no limitations in her activities of daily living, social functioning, and
concentration, persistence, or pace with no episodes of decompensation. (R. 787).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had
the ability to perform light work 1 with the following limitations: she cannot climb ladders, ropes,
or scaffolds; cannot reach overhead with either arm; must avoid concentrated exposure to smoke,
fumes, odors, dust, gases, and poor ventilation; and must avoid working at unprotected heights.
(R. 788). In making this assessment, the ALJ found Claimant's statements about her limitations
not fully credible. (R. 791-92). At step four, the ALJ concluded Claimant had the RFC to
perform the requirements of her past relevant work as a graphic designer, desktop publisher, and
receptionist as those jobs are generally performed. (R. 793).
V. DISCUSSION

A.

The RFC Determination
Claimant argues that the ALJ erred in the RFC determination by improperly weighing the

medical opinion evidence and Claimant's credibility.

Pl.'s Mem. [DE-21] at 7-13.

The

Commissioner argues that substantial evidence supports the ALJ' s RFC determination. Def.' s
Mem. [DE-26] at 6-12.
An individual's RFC is the capacity an individual possesses despite the limitations caused
1 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary
work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long
periods of time. 20 C.F.R. § 404.1567(b).

5

by physical or mental impairments. 20 C.F.R. § 404.1545(a)(l); see also S.S.R. 96-8p, 1996 WL
374184, at * 1 (July 2, 1996). "[T]he residual functional capacity 'assessment must first identify
the individual's functional limitations or restrictions and assess his or her work-related abilities
on a function-by-function basis, including the functions' listed in the regulations." Mascio v.
Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all

relevant medical and other evidence in the record and may include a claimant's own description
· oflimitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p,
1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe
impairments, the ALJ must consider their cumulative effect in making a disability determination.
42 U.S.C. § 423(d)(2)(B); see Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining
whether an individual's impairments are of sufficient severity to prohibit basic work related
activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations
omitted).
1.

Medical Opinion Evidence

When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20
C.F.R. § 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion
received. Id § 404.1527(c). In general, the ALJ should give more weight to the opinion of an
examining medical source than to the opinion of a non-examining source. Id § 404.1527(c)(1 ).
Additionally, more weight is generally given to opinions of treating sources, who usually are
most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than
non-treating sources such as consultative examiners. Id. § 404.1527(c)(2). When the opinion of
a treating source regarding the nature and severity of a claimant's impairments is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
6

inconsistent with the other substantial evidence" it is given controlling weight. Id However,
"[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." Craig, 76 F.3d at 590.
If the ALJ determines that a treating physician's opinion should not be considered
controlling, the ALJ must then analyze and weigh all of the medical opinions in the record,
taking into account the following non-exclusive list: (1) whether the physician has examined the
applicant, (2) the treatment relationship between the physician and the applicant, (3) the
supportability of the physician's opinion, (4) the consistency of the opinion with the record, and
(5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005)
(citing 20 C.F.R. § 404.1527). The weight afforded such opinions must be explained. S.S.R. 962p, 1996 WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996).2
An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v.

Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases,
the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to
discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).
i.

Dr. Huffmon 's Opinion

Claimant argues that the ALJ failed to appropriately consider the opinion of Dr. Huffmon,
Claimant's treating neurosurgeon. Pl.'s Mem. [DE-21] at 9-10. In response, the Commissioner
contends that substantial evidence supports the AC's consideration of Dr. Huffmon's opinion.
Def.'s Mem. [DE-26] at 6-9.
On March 13, 2015, Dr. Huffmon wrote a letter stating as follows:
2 Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore still apply to this claim. 82.
Fed. Reg. 15263-01 & 15263-02 (Mar. 27, 2017).

7

[Claimant] is a 60-year old female I have been seeing for quite some time. She
has had multiple surgeries on her neck from both the front and the back. She has
had fusions from both the front and the back. She currently has severe stenosis at
C7-Tl which is below the level of where she previously had surgery. She needs
to have surgery there. She also needs to have revision of her fusion at C5-6 due to
pseudoarthrosis. She will likely need surgery at C4-5 as well. I have explained to
her that there is a good chance we may have to revise her posteriorly.
She also has degenerative disc disease at L2-3, L3-4 and L4-5. Severe at L3-4
and L4-5. Multilevel lumbar spondylosis.
[Claimant] suffers from severe degenerative changes in her neck and low back.
She is going to require a very extensive surgery on her neck. She has already had
very extensive surgery on her heck. She is not capable of performing tasks of
significance at this point. Certainly cannot perform her job as a graphic designer
because of needing to work on the computer or graft board extensively. Due to
her neck she would be unable to do this. Due to her arm symptoms she would be
unable to do this. She is certainly disabled for now, from at least 2012 if not
before that. And this will continue into the foreseeable future. Even if she should
have successful outcome from her surgery, I am not sure that she would be able to
reenter the work force.
(R. 1615). Dr. Huffman's letter was not in the record at the time of the ALJ's decision, but the
AC incorporated it into the record and responded to Claimant's argument regarding Dr.
Huffman's opinion as follows:
You contend the [ALJ] did not adequately consider the treating source opinion of
George Huffmon, M.D., contained in a letter dated March 13, 2015. The [AC]
notes that this letter was received on March 20, 20125, the day the hearing
decision was issued~ The [AC] has now considered whether the [ALJ' s] action,
findings, or conclusion is contrary to the weight of the evidence currently of
record. We found that this information does not provide a basis for changing the
[ALJ' s] decision. Specifically, Dr. Huffman's [sic] letter primarily focuses on the
claimant's current condition, which is after the claimant's date last insured.
Additionally, Dr. Huffman [sic] does not specify the claimant's functional
limitations, but states generally that the claimant is "certainly disabled for now,
from at least 2012 if not before that," which is an issue reserved to the
Commissioner (Social Security Ruling 96-5p).
(R. 497).
Claimant argues that Dr. Huffman's letter relates to her functioning during the period in

8

question, despite the fact that it was written after her date last insured. PL' s Mem. [DE-21] at 10.
The Commissioner counters that the evidence discussed by the ALJ explains why Claimant was
not disabled as of December 31, 2013, even though her condition may have worsened by 2015
when Dr. Huffmon authored the opinion. Def.'s Mem. [DE-26] at 6-7. The Commissioner
acknowledges that the AC found that Dr. Huffmon did not give an opinion relating to the
relevant time period, and states that the discussion as to Claimant's worsening condition "is only
for the purposes of supporting the AC's point that Dr. Huffman's lack of a rationale for the
period under review is significant." Id at 7 n.4. The Commissioner's argument as to this point
is without merit, where the court must review the grounds supplied by the ALJ and the AC in the
first instance. See Hornal v. Berryhill, No. 7:15-CV-00266-F, 2017 WL 634697, at *4 (E.D.N.C.
Feb. 16, 2017) ("[A] reviewing court must judge the propriety of [agency] action solely by the
grounds invoked by the agency," and "[i]f those grounds are inadequate or improper, the court is
powerless to affirm the administrative action by substituting what it deems a more adequate or
proper basis.") (internal quotation marks and citations omitted).
Here, the AC considered Dr. Huffmon' s opinion and incorporated it into the record. (R.
497, 503). When the AC "specifically incorporate[s] [evidence] in to the record, the remaining
task for the court is to 'review the record as a whole, including the new evidence, in order to
determine whether substantial evidence supports the Secretary's findings."' Gentry v. Colvin,
No. 2:13-CV-66-FL, 2015 WL 1456131, at *3 (E.D.N.C. Mar. 30, 2015) (quoting Wilkins v.

Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991), superseded on other
grounds by 20 C.F.R. § 404.1527). In support of its conclusion that Dr. Huffmon' s opinion did
not provide a basis for changing the ALJ's decision, the AC offered two justifications: (1) the
opinion primarily focused on Claimant's current condition and not the period prior to her date
9

last insured, and (2) Dr. Huffmon's opnnon is on the ultimate issue of disability, an issue
reserved to the Commissioner. (R. 497).
As an initial matter, the AC is correct that Dr. Huffinon's statement about Claimant being
disabled and unable to work is an opinion on an issue reserved to the Commissioner- and
therefore is not entitled to special weight. See 20 C.F.R. § 404.1527(d) (explaining that opinions
on issues reserved to the Commissioner, such as whether a claimant is disabled, are not entitled
to special significance). Even so, Ruling 96-5p explains that while "treating source opinions on
issues that are reserved to the Commissioner are never entitled to controlling weight or special
\

significance," they must "never be ignored." S.S.R. 96-5p, 1996 WL 374183, at *2-3 (July 2,
1996). 3 "If the case record contains an opinion from a medical source on an issue reserved to the
Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the
extent to which the opinion is supported by the record." Id Here, the AC also determined that
Dr. Huffmon's opinion did not relate to the time period at issue.

(R. 497). However, Dr.

Huffinon explicitly states that his opinion extended to the time period prior to Claimant's date
last insured. See (R. 1615) ("She is certainly disabled for now, from at least 2012 if not before
that."). Where this is the only justification offered in support of the A C's determination that Dr.
Huffinon' s opinion did not impact the ALJ' s decision that Claimant was not disabled prior to her
date last insured, this cannot constitute substantial evidence in support of the agency action.
Compare Alston v. Berryhill, No. 5:16-CV-792-D, 2017 WL 4106242, at *6-7 (E.D.N.C. Aug.

31, 2017) (holding there was no error in the ALJ's consideration of a treating source opinion on
the ultimate issue of disability where the ALJ discounted the opinion because it was not
supported by the record, _an appropriate consideration under the regulations), adopted by 2017
3

Ruling 96-5p was rescinded, effective March 27, 2017, and therefore still applies to this claim. 82 Fed. Reg.
15263-01(Mar.27, 2017).

10

WL 4102475 (Sept. 15, 2017). Accordingly, where the AC's proffered reason for discounting Dr.
Hu:ffinon's opinion aside from the fact that it addressed the ultimate issue of disability is flawed,
the AC erred in considering Dr. Huffmon's opinion, and the case must be remanded for further
consideration.
ii

Stephen Carpenter's Opinion

Claimant contends that the ALJ did not properly evaluate · the oprmon of Stephen
Carpenter ("Carpenter"), a rehabilitation counselor.

Pl.'s Mem. [DE-21] at 10-12.

The

Commissioner responds that substantial evidence supports the agency's consideration of
Carpenter's opinion. Def.'s Mem. [DE-26] at 9-10.
The ALJ discussed Carpenter's opinion as follows:
Mr. Carpenter noted that testing was hampered by fatigue and pain causing

deficits in memory, concentration, and attention. He concluded that the claimant
was unable to engage in competitive work on a sustained basis due to marked
functional capacity loss secondary to multiple medical problems. He noted that
the claimant showed poor ability to sustain physical function for any type of work
activity at any exertional level on a full time basis. This opinion is also given
little weight. [Mr.] Carpenter is not an acceptable medical source, nor is he an
impartial examiner, as he was hired by the claimant's representative. His findings
that chronic fatigue severely affects the claimant's ability to function [are] not
supported by the medical evidence or by the report of the claimant's activities of
daily ·living as set forth above. Furthermore, his findings regarding showing
significant deficits in memory, concentration, and attention are not supported by
the evidence. The claimant has self-reported activities of reading, watching
television, playing games, driving, and managing finances (Exhibit 3E) are [sic]
inconsistent with the restricted level of functioning indicated by Mr. Carpenter.
(R. 793). The AC further commented on Carpenter's opinion, stating:
In giving this opinion "little weight," the [ALJ] noted that Mr. Carpenter was not
a medical source as defined by our rules. However, the [ALJ] primarily relied on
the fact that Mr. Carpenter's findings are not consistent with the record as a whole
(Social Security [Ruling] 06-03p). Specifically, Mr. Carpenter indicated the
claimant had significant deficits in memory, concentration and attention and
exhibited rapid fatigue. However, this is inconsistent with the claimant's selfreported activities of daily living (Exhibit 3E). Additionally, in treatment notes,
11

the claimant was generally observed with normal attention span, no cognitive
difficulties, she was oriented to time, place and person, and she could follow
commands and had a good fund of knowledge (Exhibits 27F, 28F, 3 lF, and 4 lF).
She has also denied psychiatric symptoms on multiple occasions, and she was
generally observed to be well nourished and in no acute distress (Exhibits 38F,
page 4, 31F, and 27F). Accordingly, the [AC] fmds that the [ALJ's] evaluation of
Mr. Carpenter's opinion is sufficient and supported by substantial evidence in the
record.
(R. 497-98).
Both the ALJ and the AC failed, however, to present the full picture of the evaluation
performed by Carpenter, who authored an opinion after reviewing Claimant's medical records
and performing vocational evaluations on Claimant on January 31, 2012. (R. 480-86). The ALJ
performed vocational testing addressing Claimant's mental abilities and her ability to work, and
also performed testing to address her physical abilities which measured, among other things,
gross upper extremity dexterity, fine hand fmger dexterity, gripping and gross handling tasks,
pinch gauge, and Claimant's ability to sit, stand, walk, stoop, bend, squat, kneel, crouch, climb,
lift, carry, push; and pull. Id

The ALJ failed to discuss Carpenter's findings as to physical

abilities, however, and only noted Carpenter's ultimate conclusion that Claimant was unable to
work, focusing on Carpenter's discussion of Claimant's mental limitations. (R. 793). While
Carpenter, a rehabilitation counselor, is not an acceptable medical source whose opinion may be
entitled to controlling weight, his opinion must still be considered. See 20 C.F.R. § 404.1513(a)
(defining "acceptable medical sources" as licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists); id § 404.1513(d) ("evidence from other sources" may be used "to show the
severity of [a claimant's] impairment(s) and how it affects [his] ability to work."); see also
S.S.R. 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (explaining that opinions from "other

12

[medical] sources ... may provide insight into the severity of [a claimant's] impairment(s) and
how it affects [a claimant's] ability to function"). 4 While the court does not conclude that this is
an independent ground for remand, on remand the ALJ should reconsider Carpenter's opinion as
well and provide a more meaningful discussion of the weight afforded to it, particularly the
physical limitations included in Carpenter's report.

iii.

Erin Williamson's Opinion

Claimant argues that the ALJ failed to properly evaluate the opinion of Erin Williamson
("Williamson"), a nurse practitioner. Pl.'s Mem. [DE-21] at 12. In response, the Commissioner
counters that substantial evidence supports the ALJ' s consideration of Williamson's opinion.
Def.'s Mem. [DE-26] at 10-11.
Williamson completed a two-page questionnaire on November 15, 2011, indicating
through check marks that Claimant has chronic low back pain which limits her ability to stand;
Claimant could not walk or stand six to eight hours in a work day; he did not know whether
Claimant could sit for six to eight hours in a work day; Claimant could not bend two to three
hours in a work day; Claimant could not lift 20 pounds for two to three hours in a work day;
Claimant's pain prevents her from obtaining restful sleep at night, she suffers from daytime
sleepiness, and fatigues easily; Claimant lies down at unpredictable intervals during the day
because of sleepiness or pain; and Claimant's sleepiness or pain prevents her frorp. concentrating
J

for two hours at a time. (R. 478-79). The ALJ discussed Williamson's opinion as follows:
Pursuant to the Court Order, the undersigned has given further consideration to
the November 2011 opinion of Erin Williamson, FNP, indicating that the claimant
is not capable of performing even a full range of sedentary work (Exhibit 23F).
This opinion is given little weight, as it is not well supported by the medical
evidence. While there is evidence that . . . Williamson treated the claimant, there
4

Ruling 06-03p was rescinded, effective March 27, 2017, and therefore still applies to this claim. 82 Fea. Reg.
15263-01(Mar.27, 2017).

13

is no evidence that regular physical examinations were performed. In January
2010 and June 2010, the claimant received treatment, but no physical examination
was conducted. In May 2010 it was noted that the claimant had no fatigue, and
had full range of motion of the neck and a steady gait. In August 2010 the
claimant reported hand pain after mowing the grass. In March 2011 . . .
Williamson reported worsening pain because she was out of medication. On
examination . . . Williamson noted tenderness on palpation of the lumbosacral
spine [and g]ait was abnormal and stiff. However, in August 2011, gait and stance
were normal although there was some tenderness of the sacrum on palpation. As
noted above, [x}-rays of the lumbar spine performed in July 2011 were consistent
with mild degenerative disc disease showing only mild lumbar scoliosis with ·
well-maintained vertebral body height and minimal endplate .sclerosis (Exhibit
17F). Therefore, the undersigned finds that the medical evidence of record does
not support the limitations assessed by ... Williamson.
(R. 792). The AC expanded upon the ALJ's discussion, stating:
[I]n considering ... Williamson's opinion, the [ALJ] assigned it "little weight"
for the reason that it is not supported by the medical evidence. In support, the
decision contains multiple examples with specific citations to the record.
Specifically, in physical examinations with . . . Williamson, the claimant was
noted to have full range of motion of the spine, steady gait, normal neurological
findings, and normal muscle tone (Exhibits llF, 14F). In March 2011, the
claimant had some worsening of her symptoms, but she reported she was out of
her medication (Exhibit 15F). In follow-up, the claimant had some tenderness to
palpitation of the lumbar spine, but no neurological or other significant deficits
(Exhibit 18F).
(R. 498).
As Williamson is a nurse practitioner, he is not an acceptable medical source whose
opinion may be afforded controlling weight, but his opinion must still be considered pursuant to
the regulations. See 20 C.F.R. §§ 404.1513(a), (d); see also S.S.R. 06-03p, 2006 WL 2329939, at
*2. Here, the ALJ and the AC discounted Williamson's opinion because it was not supported by
the record as a whole, specifically citing to the lack of severe symptoms documented in the
treatme:qt notes, which reflected

Claim~t

having largely normal findings, and review of these

treatment notes demonstrates that they support the agency's findings. The supportability and
consistency of a medical opinion are appropriate considerations under the regulations and agency
14

rulings. See id § 404.1527(c) (listing supportability and consistency in a non-exhaustive list of
facts to consider in assessing medical opinions); see also Dunn v. Colvin, 607 F. App'x 264, 268
(4th Cir. 2015) ("[T]he more the medical source presents relevant evidence to support his
opinion, and the better that he explains it, the more weight his opinion is given."). "An ALJ' s
determination as to the weight assigned to a medical opinion generally will not be disturbed
absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v.
Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has failed to give a sufficient reason for the
weight afforded a particular opinion, see 20 C.F.R. § 404.1527(d) (1998)." Dunn, 607 F. App'x
at 267. Accordingly, where the ALJ and the AC appropriately considered the consistency and
supportability of Williamson's opinion, this issue provides no basis for remand.
iv.

Claimant's Remaining Arguments

Claimant's ·remaining arguments all relate to the consideration of the medical opinion
evidence, where she argues that the ALJ' s errors in considering the medical opinion evidence led
to a flawed RFC determination; the ALJ failed to assess her credibility properly where he
concluded that she improved after surgery, which conflicts with Dr. Huffmon' s opinion that her
condition has worsened; and the ALJ concluded that she could perform her past relevant work
based on an incorrect RFC analysis. Pl.'s Mem. [DE-21] at 7-9, 12-13. Reconsideration of Dr.
Huffmon's and Carpenter's opinions will necessarily impact these issues, and they should
receive additional consideration on remand, as necessary, in light of the ALJ's further
consideration of the opinion evidence. See Jones v. Astrue, No. 5:11-CV-206-FL, 2012 WL
3580482, at *8 (E.D.N.C. Apr. 19, 2012) ("Because this court finds that remand on the issue of
the treating physician's opinion will affect the remaining issues raised by Claimant, it does not
address those arguments."), adopted by 2012 WL 3580054 (Aug. 17, 2012).
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VI. CONCLUSION
For the reasons stated above, Claimant's Motion for Judgment on the Pleadings [DE-20]
is ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-25] is DENIED, and this
matter is REMANDED to the Commissioner for further proceedings consistent with this Order.
So ordered, the 27th day of September 2017.

Robert B. Jones, Jr.
United States Magistrate Judge

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