KOLODY v. ASTRUE
Filing
24
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/10/2014, that Defendant's decision finding no disability be vacated and that the matter be remanded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings: 1) to consider whether Plaintiff's financial constraints explained his failure to follow recommended treatment and testing for Parkinson's disease (thereby altering the assessment of t he credibility of his symptom reporting, the formulation of his RFC, and the step five determination); 2) to reevaluate (also in connection with Plaintiff's RFC and the related ruling at step five) the opinions of Drs. Ferguson and Braunstein re garding matters short of the ultimate issue of disability, as well as to identify the weight given to such opinions and the rationale for that weighting; and 3) to address Listing 11.06. As a result, Defendant's Motion for Judgment on the Pleadi ngs (Docket Entry 19 ) should be denied and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 17 ) should be granted in part and denied in part, in that the Court should remand the case, but should not order an award of benefits. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARK J. KOLODY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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)
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)
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1:09CV829
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Mark J. Kolody, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Commissioner of Social Security, denying Plaintiff’s
claim for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (the “Act”).
(See Docket Entry 1.)
The
Court has before it the certified administrative record (cited
herein as “Tr. __”) and the parties have filed cross-motions for
judgment (Docket Entries 17, 19). For the reasons that follow, the
Court
should
remand
this
case
for
further
administrative
proceedings.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution for Michael J. Astrue as
Defendant in this case, by operation of Federal Rule of Civil Procedure 25(d).
PROCEDURAL HISTORY
Plaintiff applied for DIB and alleged a disability onset date
of
December
1,
1999.
(Tr.
56-60.)
After
denial
of
that
application, both initially and upon reconsideration (Tr. 32, 33,
40-41, 44-47), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 38-39).
Plaintiff, his
attorney, his wife, and a vocational expert (“VE”) appeared at the
hearing.
(Tr.
242-60.)
The
ALJ thereafter
determined
Plaintiff did not qualify as disabled under the Act.
that
(Tr. 11-24.)
The Appeals Council subsequently denied Plaintiff’s request for
review, thereby making the ALJ’s determination the Commissioner’s
final decision for purposes of judicial review.
(Tr. 4-7.)
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the Social Security Act through December 31, 2004.
2.
[Plaintiff] has not engaged in substantial gainful
activity since December 1, 1999, the alleged onset date
(20 CFR 404.1520(b) and 404.1571 et seq.).
3.
[Plaintiff] has the following severe impairments:
early mild Parkinson’s disease and depression (20 CFR
404.1520(c)).
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1525 and 404.1526).
2
. . .
5.
After careful consideration of the entire record,
the undersigned finds that [Plaintiff] has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) except that he cannot perform any
climbing of ladders, ropes or scaffolding or more than
occasional climbing of stairs, balancing, handling, or
fine manipulation. He should avoid work hazards and work
exposing him to dust, fumes, smoke, chemicals, or noxious
gases. [Plaintiff] has a limited but satisfactory ability
to relate to coworkers; interact with supervisors; deal
with work stresses; maintain attention and concentration;
understand, remember, and carry out instructions; respond
appropriately to changes in the work setting; work
closely with others without undue distraction; complete
a
normal
workweek;
accept
instructions/criticism
appropriately; and set realistic goals.
(Tr. 16-23.)
Given the findings regarding residual functional capacity
(“RFC”), the ALJ ruled that Plaintiff could not perform his past
relevant work as an auto body painter.
(Tr. 23.)
However, based
on the VE’s testimony, and after considering Plaintiff’s age,
education, work experience, and RFC, the ALJ concluded that jobs
“exist
in
significant
numbers
[Plaintiff] can perform.”
and 404.1566)).
in
the
national
economy
that
(Id. (citing 20 C.F.R. §§ 404.1560(c)
Accordingly, the ALJ declared Plaintiff not under
a “disability,” as defined in the Act, at any time from his onset
date through the date of decision.
(Tr. 24.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
3
Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).
“The courts
Oppenheim v. Finch, 495 F.2d
Instead, “a reviewing court must uphold
the factual findings of the ALJ [underlying the denial of benefits]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”
Hines, 453
F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
4
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means the “‘inability 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 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).
“To regularize the adjudicative process,
the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”
Hall, 658 F.2d at 264.
“These regulations
establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”
Id. (internal citations omitted).
5
This sequential evaluation process (“SEP”) has up to five
steps:
“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 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 [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
3
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
7
Assignments of Error
Plaintiff argues that substantial evidence fails to support
the Commissioner’s findings at steps three and five and/or that the
ALJ incorrectly applied the law at these steps.
(Docket Entry 18
at 4-17.)
Specifically, Plaintiff contends that the ALJ:
improperly
evaluated
the
credibility
of
Plaintiff’s
(1)
symptom
reporting in formulating the RFC (resulting in error at step five)
(id. at 4-9); (2) failed to adequately assess the opinions of
Plaintiff’s treating physicians (again undermining the RFC and step
five ruling) (id. at 9-12; see also Docket Entry 21 at 3); and (3)
erroneously concluded at step three that Plaintiff did not meet a
listing (id. at 12-17; see also Docket Entry 21 at 1-3).
Defendant
contends otherwise and urges that substantial evidence supports the
ALJ’s determinations.
Entry 23 at 1-2.)
(Docket Entry 20 at 3-13; see also Docket
Aspects of each of the foregoing assignments of
error require a remand for further administrative proceedings.
1.
Symptom Credibility
In formulating Plaintiff’s RFC, the ALJ found that Plaintiff’s
“medically determinable impairments could reasonably be expected to
produce
[his]
alleged
symptoms;
however,
[his]
statements
concerning the intensity, persistence and limiting effects of these
symptoms [we]re not credible to the extent they [we]re inconsistent
with the [RFC] assessment . . . .”
8
(Tr. 21.)
The ALJ’s decision
then sets out reasons for that finding. (Tr. 21-23.)
According to
Plaintiff, the ALJ based “her entire credibility attack on three
allegations which are not true: 1. That [Plaintiff] has refused to
be
compliant
with
his
medications
and
doctor’s
requests
for
additional treatment and testing; 2. That the fact that he has had
no emergency treatment or inpatient care is dispositive of a
finding of disability[;] and 3. The fact that he tried to help his
wife run her business proves that his symptoms are not as severe as
he claims.” (Docket Entry 18 at 4-5 (internal citations omitted).)
Because the ALJ’s decision does not reflect consideration of the
fact that financial constraints may have caused Plaintiff’s failure
to comply with prescribed handling of his Parkinson’s disease, the
Court should remand for further administrative proceedings.
The Social Security Administration’s Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements
(“SSR 96-7p”), 1996 WL 374186 (July 2, 1996), as applied by the
Fourth Circuit in Craig, 76 F.3d at 594-95, provides a two-part
test
for
evaluating
a
claimant’s
statements
about
symptoms.
“First, there must be objective medical evidence showing ‘the
existence of a medical impairment(s) which results from anatomical,
physiological,
or psychological
abnormalities
and
which
could
reasonably be expected to produce the pain or other symptoms
alleged.’”
Craig,
76
F.3d
at
9
594
(quoting
20
C.F.R.
§ 404.1529(b)). Upon satisfaction of part one by the claimant, the
analysis proceeds to part two, which requires an assessment of the
intensity and persistence of the claimant’s symptoms, and the
extent to which they affect his or her ability to work.
F.3d at 595.
Craig, 76
In making that determination, the ALJ:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).
Here (as quoted above), the ALJ found for Plaintiff on part
one of the inquiry, but ruled, in connection with part two, that
his statements about the extent of his symptoms lacked credibility
in so far as he claimed a greater level of impairment than the ALJ
found (as reflected in the RFC).
acknowledged
that
Plaintiff
(Tr. 21.)
“ha[d]
In particular, the ALJ
some
limitations
due
to
[Parkinson’s],” but declared that she was “not persuaded that he
[wa]s as limited as he allege[d].”
(Tr. 22.)
As support for that
judgment, the ALJ stated that Plaintiff “ha[d] been less than
compliant with recommended evaluations/investigations needed to
more
closely
differentiate
his
condition.
Failure
to
seek
appropriate medical treatment or follow recommendation [sic] from
10
a physician is a reason to discount the alleged severity of a
condition . . . .”
(Id.)
The ALJ thereafter concluded the
credibility analysis by reiterating that “claimant’s refusal to
undergo
diagnostic
testing
which
would
possibly
neurologically based disorder cannot be ignored.”
eliminate
a
(Tr. 23.)
Plaintiff has conceded that he was “not always compliant with
his medication regimen, and he was unable to get some tests that
were
recommended
by
his
doctors.”
(Docket
Entry
18
at
5.)
However, citing SSR 96-7p and Lovejoy v. Heckler, 790 F.2d 1114,
1117 (4th Cir. 1986), Plaintiff contends that “[t]he ALJ did not
properly consider that [Plaintiff] often lacked the funds to
purchase his medication and pay for additional treatment . . . .”
(Docket
Entry
18
at
6.)
The
law
and
the
record
bear
out
Plaintiff’s contention on this point.
The Social Security Ruling cited by Plaintiff provides that:
the adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from
a failure to seek or pursue regular medical treatment
without first considering any explanations that the
individual may provide . . . that may explain infrequent
or irregular medical visits or failure to seek medical
treatment. . . . For example:
. . .
*The individual may be unable to afford treatment
and may not have access to free or low-cost medical
services.
SSR 96-7p, 1996 WL 374186, at *7-8 (emphasis added); see also
Lovejoy, 790 F.2d at 1117 (declaring that “[a] claimant may not be
penalized for failing to seek treatment []he cannot afford; ‘[i]t
11
flies in the face of the patent purposes of the Social Security Act
to deny benefits to someone because he is too poor to obtain
medical treatment that may help him’” (quoting Gordon v. Schweiker,
725 F.2d 231, 237 (4th Cir. 1984))).
Here, the record documents a
number of reports by Plaintiff of inability to pay for recommended
Parkinson’s care. (Tr. 141, 150, 199, 200.) The ALJ’s credibility
analysis makes no mention of that evidence.
(Tr. 22-23.)
Given
the materiality to the ALJ’s credibility finding of Plaintiff’s
failure to take prescribed measures for his Parkinson’s and the
significance of that credibility finding to the RFC determination
(and thus the step five ruling), the Court should order a remand.
Plaintiff’s
other
two
challenges
to
the
ALJ’s
symptom
credibility analysis, however, establish no error. First, contrary
to Plaintiff’s assertion, the ALJ did not rule in blanket fashion
that “the fact that [Plaintiff] ha[d] no emergency treatment or
inpatient care [wa]s dispositive of a finding of disability”
(Docket Entry 18 at 5); instead, the ALJ simply (and accurately)
recognized that, “[w]ith respect to the diagnosis of depression,
Plaintiff ha[d] no history of formal mental health treatment . . .
[and] ha[d] not been treated with any psychotropics . . . [or]
required emergency care or inpatient treatment . . . .”
(Tr. 22.)5
5
To the extent Plaintiff focuses on the fact that “Parkinson’s disease is
a progressive degenerative disease that is typically treated with medications,”
such that “[a] lack of emergency or inpatient care for [that] condition [would]
not demonstrate that [his] condition is not disabling,” (Docket Entry 18 at 6),
12
Moreover, unlike with his Parkinson’s, the record does not indicate
that Plaintiff failed to seek treatment for depression because of
lack of funds.
In the absence of evidence that impecuniosity
caused Plaintiff to forego care for depression, the ALJ acted
permissibly by considering lack of treatment history in assessing
the credibility of Plaintiff’s symptom reporting as to depression.
See SSR 96-7p, 1996 WL 374186, at *7-8.
Finally, Plaintiff asserts the ALJ improperly concluded that
“[t]he fact that [Plaintiff] tried to help his wife run her
business proves that his symptoms are not as severe as he claims.”
(Docket Entry 18 at 5.)
In this regard, citing Cornett v.
Califano, 590 F.2d 91, 94 (4th Cir. 1978), and Gentle v. Barnhart,
430 F.3d 865, 867 (7th Cir. 2005), Plaintiff contends that brief or
intermittent work, particularly undertaken due to financial strain,
“is not dispositive of disability.”
(Docket Entry 18 at 7.)
The
ALJ, however, did not discount Plaintiff’s symptom reporting simply
because he attempted work.
Rather, the ALJ pointed out evidence
indicating that Plaintiff described the purchase of the business in
question in a manner that suggested he intended to work at it (and
thus believed he had the ability to do so), as well as evidence
that Plaintiff had made conflicting statements about when he last
he misses the mark. As the above-quoted language reflects, the ALJ expressly
limited the pertinent portion of the discussion in question to Plaintiff’s
“diagnosis of depression.” (Tr. 22.)
13
worked as a painter.
(See Tr. 22.)
The ALJ had the right to
consider such matters in evaluating Plaintiff’s credibility.
See
SSR 96-7p, 1996 WL 374186, at *4-5 (“One strong indication of the
credibility of an individual’s statements is their consistency,
both internally and with other information in the case record.”).6
Under these circumstances, the Court should remand the case
for the ALJ to address whether Plaintiff’s inability to afford
prescribed treatment and testing for Parkinson’s would affect the
assessment of the credibility of his symptom reporting, as well as
(by logical extension) his RFC and the adjudication of step five.
2.
Treating Physicians’ Opinions
Plaintiff next argues that the ALJ erred by “essentially
disregard[ing] the opinions of [his] treating physicians . . .
[and]
simply
declar[ing]
‘appropriate weight.’”
that
she
had
given
their
opinions
(Docket Entry 18 at 9 (quoting Tr. 22).)
This argument also warrants a remand.
An ALJ generally must give controlling weight to the opinion
of a proper treating source as to the nature and severity of a
claimant’s impairment, on the ground that such sources “provide a
detailed,
longitudinal
picture
6
of
[the
claimant’s]
medical
To the extent Plaintiff also challenges the ALJ’s symptom credibility
analysis on the ground that the ALJ’s decision “embellished [Plaintiff’s] hearing
testimony” (Docket Entry 18 at 8), no basis for remand exists, because the ALJ’s
discussion of symptom credibility (and related RFC formulation) did not purport
to rely on any testimony by Plaintiff about his daily activities (see Tr. 21-23).
14
impairment(s) [which] may bring a unique perspective to the medical
evidence
that
cannot
be
obtained
from
the
objective
medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.”
404.1527(d)(2).7
20 C.F.R. §
This rule recognizes, however, that not all
treating source opinions deserve such deference.
First, the nature and extent of each treatment relationship
may temper the weight afforded.
Further,
a
treating
20 C.F.R. § 404.1527(d)(2)(ii).
source’s
opinion
controls
only
if
well-
supported by medical signs and laboratory findings and consistent
with the other substantial evidence in the record.
20 C.F.R.
§ 404.1527(d)(2)-(4). “[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.
Finally, opinions regarding the
ultimate issue of disability, regardless of source, do not receive
controlling weight.
See 20 C.F.R. § 404.1527(e).
In this case, the ALJ found as follows:
I have considered the opinion/assigned appropriate weight
to Drs. Ferguson, Braunstein, and Cartwright’s opinions;
on the other hand, statements of disability are not
medical opinions but are administrative findings
dispositive of a case, requiring familiarity with the
7
Effective March 26, 2012, a regulatory change recodified the treating
physician rule as 20 C.F.R. § 404.1527(c)(2), but did not impact the substantive
language of the rule. See 77 F. Reg. 10651–10657 (Feb. 23, 2012). Given that
all material events in this action preceded that non-substantive regulatory
change, this Recommendation uses the pre-March 26, 2012 citations.
15
Regulations and legal standards set forth herein. Such
issues are reserved to the Commissioner . . . .
[O]pinions reserved to the Commissioner can never be
entitled to controlling weight but must be carefully
considered to determine the extent to which they are
supported by the record or contradicted by persuasive
evidence. In that regard, I do not find the evidence of
record supportive of the foregoing statements.
(Tr. 22 (internal citation omitted).)
The ALJ erred by dismissing
the treating physicians’ opinions as “statements of disability.”
More specifically, although all three of the cited doctors did
describe Plaintiff as disabled (Tr. 117, 118, 129, 137), two of
them also supplied opinions as to specific limitations attributable
to his impairments (Tr. 131-36, 143-46).
Dr. Ferguson reported
that Plaintiff could occasionally lift 10 pounds and would need
breaks from work every 20 to 30 minutes.
(Tr. 134.)
In addition,
Dr. Ferguson opined that Plaintiff could walk for no more than a
block, could sit for no more than 20 minutes at a time, could stand
for no more than 10 minutes at a time, could sit for fewer than two
hours in an eight-hour day, and could stand or walk for fewer than
two hours in an eight-hour day.
(Tr. 133.)
Dr. Ferguson further
concluded that Plaintiff could not perform even low stress jobs and
that his prognosis with respect to Parkinson’s appeared poor. (Tr.
132-33.)
Similarly,
Dr.
Braunstein
found
that
Parkinson’s
prevented Plaintiff from sitting or standing for more than 15
minutes
at
a
time,
that
he
would
need
to
change
positions
frequently, and that he could occasionally lift only 20 pounds and
16
could carry only 10 pounds.
(Tr. 143-44.)
Dr. Braunstein also
placed significant limits on Plaintiff’s ability to push, pull,
grasp, finger, squat, crawl, climb, stoop, and kneel.
None
of
the
foregoing
reserved to the Commissioner.
opinions
address
(Tr. 144.)
ultimate
issues
Accordingly, the ALJ should have
expressly analyzed whether they warranted controlling weight and
the Court should remand the case for such analysis.
Further, if,
upon remand, the ALJ concludes that the above-cited opinions of
Drs. Ferguson and Braunstein should not receive controlling weight,
the ALJ must state, in a manner that makes meaningful judicial
review possible, what weight they should receive and why.8
The ALJ
then must make any warranted adjustments to Plaintiff’s RFC9 and,
if appropriate, must re-visit the step five determination.
8
Notably, the Social Security Administration’s Policy Interpretation
Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical
Opinions (“SSR 96-2p”) states:
[A] finding that a treating source medical opinion is not wellsupported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with the other substantial evidence in
the case record means only that the opinion is not entitled to
“controlling
weight,”
not
that
the
opinion
should
be
rejected. . . . In many cases, a treating source’s medical opinion
will be entitled to the greatest weight and should be adopted, even
if it does not meet the test for controlling weight.
SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996).
9
For example, after properly assessing the above-referenced medical
opinions, the ALJ might need to reconsider the description of Plaintiff’s
Parkinson’s as involving only “a mild degree of symptomatology that ha[d] not
progressed to any significant degree over time” (Tr. 22).
17
3.
Listings 11.06 and 12.04
Plaintiff contends that the ALJ “committed serious error when
she found that [he] did not meet a listing.”
12.)
(Docket Entry 18 at
Specifically, Plaintiff asserts that the ALJ erred because
“she did not even consider his symptoms against the Parkinson’s
listing, despite the clear implication of the listing in this case”
(id.), and
because
she
“found
that
[Plaintiff]
did
not have
functional limitations of the required severity to satisfy the
[depression] listing” (id. at 14).
further
proceedings
as
to
The Court should remand for
Listing
11.06
(applicable
to
Parkinson’s), but not Listing 12.04 (applicable to depression).
“In evaluating a claimant’s impairment, an ALJ must fully
analyze whether a claimant’s impairment meets or equals a ‘Listing’
where there is factual support that a listing could be met.”
Huntington v. Apfel, 101 F. Supp. 2d 384, 390 (D. Md. 2000) (citing
Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)).
Here, at
step two, the ALJ ruled that Plaintiff’s Parkinson’s constituted a
severe impairment (Tr. 16-17), but did not, at step three, address
Listing 11.06 (Tr. 20-21), which establishes these requirements:
Parkinsonian
syndrome
with
the
following
signs:
Significant rigidity, brady kinesia, or tremor in two
extremities, which, singly, or in combination, result in
sustained disturbance of gross and dexterous movements,
or gait and station.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 11.06.
18
Four doctors, including state agency consultative examiner Dr.
Lori Schneider, diagnosed Plaintiff as suffering from Parkinson’s.
(Tr. 117, 118, 129, 132, 137, 143, 213.)
Moreover, the record
contains numerous medical findings that would appear to satisfy
Listing 11.06’s other criteria.
219, 221, 223, 225, 233-40.)
(See Tr. 85, 143, 212-14, 218,
In the face of that evidence,
Defendant argues that the ALJ “was not required to evaluate the
case under Listing 11.06,” because “Plaintiff had only ‘early mild’
Parkinson’s disease and his mild symptoms did not progress to any
significant degree during the relevant period.”
at 4 (citing Tr. 197-203, 217-25).)
(Docket Entry 20
Defendant further contends
that “Plaintiff d[id] not meet Listing 11.06” (id.) and identifies
as support two state agency physicians’s opinions (id. at 5).
These arguments by Defendant fall short because, assuming that
the record contains evidence which would have allowed the ALJ to
find against Plaintiff regarding Listing 11.06, the record also
appears to contain sufficient evidence of Listing 11.06’s criteria
(cited above) to require the ALJ to address that listing, to
resolve any conflicts in the evidence, and to explain the ultimate
decision.
In other words, where the record reasonably could
support a finding either way as to whether Plaintiff met Listing
11.06, “it is the role of the Commissioner to make and explain that
determination and not this Court,” Hood v. Astrue, No. SKG-08-2240,
2009 WL 4944838, at *6 (D. Md. Dec. 14, 2009) (unpublished).
19
As to Listing 12.04, however, substantial evidence supports
the ALJ’s determination that Plaintiff’s depression did not satisfy
the necessary criteria, which consists, in relevant part, of:
B. . . . [A]t least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning;
or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration;
OR
C. Medically documented history . . . of at least 2
years’ duration . . . with symptoms or signs currently
attenuated by medication or psychosocial support, and one
of the following:
1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to
function outside a highly supportive living arrangement,
with an indication of continued need for such an
arrangement.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.04.10
10
In this context, to qualify as “marked,” a limitation must “interfere
seriously with [one’s] ability to function independently, appropriately,
effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 12.00(C); see also 20 C.F.R. § 404.1520a(c)(4) (explaining that “marked”
represents the fourth-highest of five levels, below “extreme,” but above “none,
mild, [and] moderate”).
Decompensation here refers to “exacerbations or
20
The ALJ expressly addressed the foregoing listing criteria,
ruling first that Plaintiff suffered only moderate restriction in
his activities of daily living.
(Tr. 20.)
In that regard, the ALJ
noted that Plaintiff could drive, load the dishwasher, do the
laundry, occasionally mow the grass, and “exercise some to maintain
his conditioning.”
(Id.)
Next, the ALJ concluded that Plaintiff
endured only moderate difficulties in social functioning, pointing
out that, although he reported “isolative behaviors,” he could
“associate with others in the public domain without incident” and
appeared
“pleasant
and
examination.
(Id.)
Plaintiff’s
cooperative”
difficulties
at
his
consultative
The ALJ similarly assessed as only moderate
with
maintaining
concentration,
persistence, and pace, emphasizing that he could read, watch
television,
drive
activities.
(Id.)
a
car,
and
perform
routine,
simple
daily
As to the final item in the “B” cluster of
functional limitations, the ALJ found that Plaintiff had not
suffered any episodes of decompensation.
(Id.)
The ALJ then
concluded that the record failed to establish the presence of any
of the criteria in the listing’s alternative “C” section.
(Id.)
Plaintiff has failed to point to evidence that would require
reversal of the foregoing findings, i.e., evidence that would have
required
the
ALJ
to
find
“marked”
functional
limitations,
temporary increases in symptoms or signs accompanied by a loss of adaptive
functioning . . . .” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(C)(4).
21
decompensation
history
or
risk,
and/or
inability
independently.
(See Docket Entry 18 at 14-17.)
to
live
To the extent
Plaintiff relies on the report of consultative examiner Dr. Prem K.
Muthu (id. at 15-17; see also Tr. 156-59), the ALJ declined to give
substantial weight to the opinions therein, because she did “not
consider[] them consistent with a preponderance of the evidence of
record” (Tr. 22).
Given the lack of medical evidence in the record
reflecting treatment for (or even documenting significant symptoms
of) depression during the relevant period11 and the fact that many
of the statements in Dr. Muthu’s report merely reflect Plaintiff’s
subjective complaints (see, e.g., Tr. 158), substantial evidence
supports the ALJ’s decision to discount Dr. Muthu’s opinions and to
rule Plaintiff’s depression below listing-level.
In sum, the Court should remand the case for the ALJ to
explain whether (and why) Plaintiff did or did not meet the
Parkinson’s listing, but substantial evidence supports the ALJ’s
determination that Plaintiff’s depression failed to meet a listing.
CONCLUSION
The ALJ committed three errors.
First, in evaluating the
credibility of Plaintiff’s symptom reporting, the ALJ should have
addressed whether Plaintiff’s lack of funds mitigated his failure
11
In fact, a state agency examiner noted the absence of any evidence of
any mental impairment before April 28, 2005, approximately four months after
Plaintiff’s date last insured. (Tr. 176.)
22
to pursue prescribed treatment and testing for his Parkinson’s
disease.
Second, the ALJ did not adequately evaluate the opinions
of two of Plaintiff’s treating physicians.
Third, given the
record, the ALJ should have expressly analyzed whether Plaintiff
met the Parkinson’s listing.
further proceedings.
These errors warrant a remand for
See generally Radford v. Colvin, 734 F.3d
288, 294-96 (4th Cir. 2013) (vacating district court’s order
directing
benefits
award
and
instead
requiring
remand
for
additional administrative action where record reflected need for
ALJ
to
weigh
conflicting
evidence,
to
make
credibility
determination, and to explain decision-making).12
12
This Recommendation thus concludes that Plaintiff’s counsel, Charlotte
W. Hall of the Charles T. Hall Law Firm, P.C. in Raleigh, North Carolina, has
performed a worthy professional service by bringing to light material
shortcomings in the administrative process afforded her client. Unfortunately,
the record also reflects that, in doing so, Ms. Hall directed unprofessional
rhetoric at the ALJ. (See Docket Entry 18 at 16 (sarcastically stating: “it is
unclear how the ALJ, who is not a mental health professional, felt confident
enough to ‘play doctor’”); Docket Entry 21 at 3 (asserting that “ALJ’s reasoning
was ridiculous on its face”).) “Social security ALJs have difficult jobs.” Hill
v. Astrue, Civil Action No. 07-1028-MLB, 2007 WL 4723787, at *2 (D. Kan. Nov. 1,
2007) (unpublished); see also Martinez v. Astrue, 630 F.3d 693, 695 (7th Cir.
2011) (“We are mindful of the difficulties that the Social Security
Administration’s administrative law judges labor under. They have a very heavy
caseload . . . [and their] [s]upport staff is inadequate.”). Accordingly, they
deserve respect, not ridicule, even when they make mistakes.
When a lawyer
reasonably believes an ALJ has made a significant error, the lawyer properly may
bring that matter to the Court’s attention; however, a lawyer should do so
respectfully and certainly must not stoop to insults. Going forward, Ms. Hall
should understand that failure to follow that standard will ill-serve her client,
will damage her reputation, and will provide a basis for sanctions. See, e.g.,
Meyler v. Commissioner of Soc. Sec., 238 F. App’x 884, 888 n.2 (3d Cir. 2007)
(“We ordered counsel’s original brief stricken and a new brief filed without ad
hominem attacks on the ALJ. The new brief is not much improved over the original
as it continues to make disrespectful, unwarranted allegations against the ALJ.
We are obliged to advise counsel that his lack of professionalism harms the
interest of his client and adversely affects his credibility. Counsel must cease
this unprofessional conduct or be subject to sanctions.”).
23
IT IS THEREFORE RECOMMENDED that Defendant’s decision finding
no disability be vacated and that the matter be remanded under
sentence four of 42 U.S.C. § 405(g), for further administrative
proceedings:
1)
to
consider
whether
Plaintiff’s
financial
constraints explained his failure to follow recommended treatment
and
testing
assessment
of
for
the
Parkinson’s
credibility
disease
(thereby
of
symptom
his
altering
the
reporting,
the
formulation of his RFC, and the step five determination); 2) to reevaluate (also in connection with Plaintiff’s RFC and the related
ruling at step five) the opinions of Drs. Ferguson and Braunstein
regarding matters short of the ultimate issue of disability, as
well as to identify the weight given to such opinions and the
rationale for that weighting; and 3) to address Listing 11.06.
As
a result, Defendant’s Motion for Judgment on the Pleadings (Docket
Entry 19) should be denied and Plaintiff’s Motion for Judgment on
the Pleadings (Docket Entry 17) should be granted in part and
denied in part, in that the Court should remand the case, but
should not order an award of benefits.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 10, 2014
24
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