WILSON-COLEMAN v. ASTRUE

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 11/12/2013; that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Comm issioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for further administrative action as set out above. To this extent, Plaintiff's Motion for Judgment for Plaintiff (Docket Entry 16 ) should be GRANTED and Defendant's Motion for Judgment on the Pleadings (Docket Entry 18 ) be DENIED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RHONDA WILSON.COLEMAN,
Plaintiff,
v

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

Defendant.

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l:llCY726

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rhonda Wilson-Coleman, btought this action pursuant to Section 205(9) of
the Social Security Act (the "Act"), as amended (42 U.S.C. $ a05G)), to obtain review of a Ftnal

decision of the Commissionet of Social Secutity denying her claims for a Period of Disability

("POD")

and Disability Insurance Benefits

("DIB") under Title II of the ,\ct.1 The Cout

has

before it the cetified administtative tecord and cross-motions for judgment.

I.

PROCEDURAL HISTORY

Plaintiff protectively filed an application for
disability onset date of November 29,2007.

(Ir.

a

POD and DIB onJuly 2,2008 alleging

a

19, 128-131.)2 The application was denied

initially and agatn upon teconsideraion. Qd. at69-74,77-79.) Plaintiff then requested

1

a

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 74, 2073.
Pursuant to Rule 25(d) of the Federal Rules of Civil Ptocedute, Catolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this suit. No further action need be taken to
continue this suit by teason of the last sentence of section 205(g) of the Acq 42 U.S.C. S 405(9).

'

Ttanscrþt citations refer to the administrative record.

hearing before an ,\dministrative LawJudge

("ÂLJ").

Qd. at

83-89.) ,{.t the Apdl 28,201,0

headng were Plaintiff, het husband, het attotney, and a vocational expett

The ,AIJ detetmined that Plaintiff was not disabled undet the

Âct.

("VE").

(Id. at 30.)

(Id. at1,9-29.) OnJuly 14,

2011 the.,\ppeals Council denied Plaintiff s request for review. Qd.
tequested that the Appeal's Counsel reconsider its decision. Qd. at

^t

7 -'1,1..)

Plaintiff then

6.) On September 27,

,\ppeals Counsel teconsideted Plaintiffs request fot review in light of additional

2011., the

evidence, and again denied Plaintiffs request for teview, making the AIJ's determination the

Commissionet's final decision for purposes of review. (Id. at

1,-5.)

II. FACTUAL BACKGROUND
Plaintiff was 32 yeats old on the alleged disabiJity onset date. (Id. at 28.) She had at
least a high school education and the ability to communicate in English, and het past televant

wotk was

as a cashiet and

mail sorter. (Id. at

27

-28.)

III. STANDARD FOR REVIEW
The Commissionet held that Plaintiff was not under a disability within the meaning
the

Act.

of

Under 42 U.S.C. $ 405(9), the scope of judicial teview of the Commissioner's fìnal

decision is specific and

narow.

Snith

u. Schwei/eer,795

F.2d 343,345 (4th Cit. 1986). This

Court's teview of that decision is limited to determining whether thete is substantial evidence

in the tecotd to support the Commissioner's decision. 42 U.S.C.

$ a05(g); Hanter u. Sulliuan,

993 tr.2d 31, 34 (4th Cir. 1,992); Hals u. Sulliuan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Substantial evidence is "such televant evidence as a reasonable mind might accept as adequate

to support

a conclusio

n." Hanter, 993 tr .2d at 34 (cilng

2

Richardson u. Perales, 402 U.S. 389 , 401,

It

(1,971)).

"consists

of more than a mete scintilla" "but may be somewhat less than

ptepondetance." Id. (quoing

I-^aws u. Celebreçe,

a

368 F.2d 640, 642 (4th Cit. 1,966)).

The Commissionet must make fìndings of fzct and tesolve conflicts in the evidence.
Ha1s,907F.2d^t1456 (citing Kingu.Calfan0,599F.2d597,599 (4thCir. 1,979)). TheCoutt
does not conduct a de novo teview
Schweiker,

795 tr.2d

^t

of the evidence not of the Commissioner's

345. In reviewing for

findings.

substantial evidence, the Court does not

undetake to te-weigh conflicting evidence, to make credibility determinations, or to substitute

its judgment for that of the Commissioner. Craig
(citing HoJt,907 F.2d

^t

u. Chater,

7

6 F.3d 585, 589 (4th Cir. 1996)

1,456). "\Where conflicting evidence allows teasonable minds to

diffet as to whether a claknant is disabled, the responsibility fot that decision falls on the
fCommissioner] (ot the [Commissionet's] designate, the

AIJ)."

Cmig76F.3d at 589 (quoting

IYalker u. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). The denial of benefits

only
See

if no reasonable mind could accept the recotd

Nchardson

u.

Perales,4O2 U.S. 389, 401,

as adequate

will be tevetsed

to suppott the determination.

(1,971). The issue before the Court, thetefote, is not

whether Plaintiff is disabled, but whether the Commissionet's finding that Plaintiff is not
disabled

is supported by substantial

application of the relevant

law.

See

evidence and was teached based upon

id.; Cofnan u. Bowen,829 F.2d 514,

5"1.7

a

coffect

(4th Cir. 1,987).

IV. THE ALJ'S DISCUSSION

The Social Security Regulations define "disability" fot the pulpose of obtaining
disability benefits as the "inability

to do any substantial gainful activity by teason of

j

any

medically detetminable physical or mental impairment3 which can be expected to tesult in
death or which has lasted or can be expected to last for a continuous period of not less than 12

months." 20 C.F.R. S 404.1505

(a);

sæ also

42 U.S.C. S 423(dX1XÐ. To meet this definition,

a claknant must have a severe impairment which makes it impossible to do ptevious wotk or

any othet substantial gainful activitya that exists
404.1505(a);

see

also

42U.5.C.

S

A.

in the national economy. 20 C.F.R. S

423(dX2XÐ.

The Five-Step Sequential Analysis

The Commissioner follows a five-step sequential analysis to ascettain whether the claimant
is disabled, which is set
1,7

foth in 20 C.tr.R. S 404.1520.

See

Albright

u. Comm'r of Soc. Sec.

Admin.,

4 tr.3d 473, 47 5 n.2 (4th Ctr. 1999). The ÂLJ must determine in sequence:

(1)

ìThether the claimant is engaged in substantial gainful activity (i.e., whether the
claimant is wotking).

Q)

If

so, the claimant is not disabled and the inquity ends.

llhethet the claimant has a severe impairment. If not, then the claimant is not
disabled and the inquiry ends.

(3)

Whether the impairment meets or equals to medical cnteÅa of 20 C.F.R., Part
404, Subpatt P, ,r{.ppendix 1, which sets foth a list of impafuments thatwartart

finding of disability without considering vocational criterta.
disabled and the

inquþ

If

a

so, the claknant is

is halted.

3 A "physical or mental impairmenC' is an impairment resulting frorr_ "anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42U.5.C. S 423 (dX3)

o

"snbstuntial gainful actrvity" is work that (1) involves performing significant ot productive physical
ot mental duties, and Q) is done (or intended) fot p^y or profit. 20 C.F.R. S 404.1510.
4

(4)

\X/hethet the impaitment prevents the claimant ftom petfotming past televant

work. If not, the claimant

(5)

is not disabled and the inqurry is halted.

Whether the claimant is able to perform any othet work consideting both het
tesidual functional capacrtys and het vocational abilities.

If so, the claimant is

not disabled.
20 c.F.R.

S

404.1520

Flete, the ALJ

ftst determined that Plaintiff had not engaged in substantial

activity since het alleged onset date of Novembet 29,2007. (Id.

in step ¡wo that Plaintiffs mild arthtitic

changes

at21.)

gainful

The ALJ next found

of the lumbat spine, fibtomyalgia, anxiety,

depression, and panic disotdet wete severe impairments.

(Id.) At

step thtee, the ALJ found

that Plaintiff did not have an impairment or combination of impaitments listed in, or medically
equal to, one listed in

'\ppendix

1. (Id.) The,{IJ teached the fouth

step of the sequence, at

which point he determined that Plaintiff could return to her past relevant

work.

(Id. at 27.)

The ALJ also made art alternaive step fìve {ìnding that there were othet jobs in the national
economy that Plaintiff could perform. (Id. at 28.) Consequently, the

A{

concluded that

Plaintiffwas not disabled from the alleged onset date (l{ovembet 29,2007) through the date of
the decision Sune 21,2010). Qd. at29.)

s

"Residual functional capacity" is the most a claimantcan do in

work setting despite the physical and
mental lirnitations of her impairment and any related symptom (e.g., pan). See 20 C.F.R. S
404.1545(a)(1); see also Hines u Barnhart, 453 F.3d 559, 562 (4th Cir. 2006). The RFC includes both a
"physical exettional or strength limitation" that assesses the claimant's "ability to do sedentary, Iight,
medium, heavy, or very heavy wotk," as well as "nonexettional limitations (mental, sensory or skin
impairments)." Hall a. Harris,658 F.2d 260,265 (4th Cir. 1981).
5

a

B.

Residual Functional Capacity Determination

Priot to step fout, the ALJ detetmined PlaintifPs RtrC based on his evaluation of the
evidence, including Plaintifls testimony and the findings of tteating and examining health care

providers. Qd. at 22-27.) Based on the evidence as a whole, the ALJ determined that
Plaintiff tetained the RFC to petform

a

limited r^nge of unskilled light work involving lifting

and carrying twenty pounds occasionally and ten pounds ftequently; sitting, standing andf or

walking for six houts in an eight hour workday. (Id. at22.) Plaintiff could not climb ladders,
ropes, ot scaffolds; could occasionally climb ramps and stairs and could occasionally balance.

(Id.)

She could never ctawl and had ftequent but not constant use

She should also avoid concentrated exposure
assistance

of her tight hand.

to fumes and gases and needs a

Qd.)

cane for

with balancing. (Id.)

C.

Past Relevant Sfork

The ALJ found in step four that Plaintiff was capable of perfotming past televant wotk
as a cashiet

II

and mail

soter.

Qd.

^t

27

.)

The ALJ concluded that this work did not tequire

the petfotmance of wotk-related activities ptecluded by PlaintifPs RF'C. (Id.) The ALJ
concluded in the alternative that thete wete other jobs in the national economy that Plaintiff

could petfotm given het age, education, work experience, and

RFC.

(Id.

at28.)

Specifically,

the ALJ pointed to a numbet of positions noted by the VE as being consistent with an
individual similady situated to Plaintiff, including ticket seller, office helpet, and routing cletk.

Qd.)

The ALJ thus concluded Plaintiff was not under a disability from the alleged onset date

(lr{ovember29,2007) through the date of the decision flune 21,,201,0.) (Id.)

6

V.

ANALYSIS

Plaintiff raises two issues. First, Plaintiff contends that the ALJ failed to analyze the
cumulative effect

of her impairments on her ability to wotk. (Docket E.rtty 1,7 at 5.)

Second, Plaintiff asserts that the ALJ failed

to propetþ weigh the opinion of one of het

tteating psychologists. Qd. at1,9.) As explained beloq the second of these arguments has
enough merit to justify a rcmand for furthet ptoceedings

A. The ALJ Propedy Considered the Cumulative Effect

of

PlaintifPs

Impairments.

Plaintiff contends that the ,AIJ failed

to

analyze

the cumulative effects of her

impaitments. (Docket Entty 17 at 5-7.) An individual's RFC is defined as that capacity

which an individual possesses despite the limitations caused by het physical ot mental
impairments. 20 C.F.R.

S

404.1545(uX1);

see

also Social

Secutity Ruling ("SSR')

96-8p. The

RFC assessment is based on all the relevant medical and other evidence in the case tecotd and
may include a clatrnant's own description of limitations arising ftom alleged symptoms. 20
C.F.R.

SS

404.1545(a)(3); :ee also SSR

96-8p. When a claknant has a number of impafuments,

including those deemed not severe, the ALJ must considet their cumulative effect in making
disability determination. 42 U.S.C.

1989)

("[]r

423(dX2) @); tu Hines

u.

Bowen,872F.2d 56, 59 (4th Cir.

determining whether an individual's impairments arc

ptohibit basic wotk telated activities,
lmpalfments

S

))

an

a

of sufficient

sevetity to

N,J must considet the combined effect of a claimant's

(citations omitted)). However, "fs]ufficient considetation of the combined

effects of a fclaimant's] impairments is shown when each is sepatately discussed in the ,{LJ's
decision, including discussion of a [claimant's] complaints of pain and level of daily activities."
7

Baldwinu.Bamhart,444F. S.rpp. 2d457,465 @,.D.N.C.2005) (citations omitted), af,d1,79tred.

App'"

1,67

(4th Cu.2006) (unpublished).

Here,

it is clear ftom the ,{IJ's

decision that he considered each

of Plaintiffs

impairments both individually and cumulatively. As noted, the ALJ concluded ât step two
that Plaintiff suffered ftom fìve severe impairments: (1) mild athdtic changes of the lumbar
spine, (2) fibtomyalgia, (3) anxiety, (4) deptession, and (5) pain disotder.
three, the

'\LJ then

addressed PlaintifPs arthritic changes, pain, and

[r.

21,.) At step

fibromyalgial:y name and

concluded that they did not meet or equal the relevant listings. (Id. at21,-22.) The ALJ then

addtessed Plaintiffs remaining impairments, her mental impairments, "singlþ] and in

combination" and concluded that they did not meet or equal the listings. (Id. at 22.) In
concluding that Plaintiff did not meet or equal

a

listed impaitment, the -ALJ also petformed the

"special technique" in assessing PlaintifPs mental impairments, concluding that Plaintiff had
(1) mild testrictions in activities of daily living, Q) moderate difficulties in social functioning,

(3) moderate difficulties

in

concentration, petsistence,

or

pace> and (4)

no

episodes

of

decompensation of extended duration. Qd.)

The ,AIJ then evaluated PlaintifPs physical and mental residual functional capacity

Aftet summarizing Plaintiffs testimony (id. at 23,26) and to a lesser extent the testimony of
her husband (id. at 26), the ALJ proceeded to evaluate the televant medical opinions.
Specifically, the

,{IJ addtessed

the opinions of (1) Dr. Paul J. Ttney, a physician with the

North Carohna Otthopedic Clinic, who concluded that Plaintiffs low back pahhad essentially
tesolved thtough physical thetapy by November 2006, Q) Dn William Â. Somer, who tteated

8

Plaintifls neck and back pain, and concluded that

she was "teasonably physically

fìt," that

she

tended to exaggerate her symptoms , and that she was teally at about a three or four out of ten

orì a one to ten pain scale, (3) Dr. Winston C. V. Pattis, who ptovided Plaintiff a series of
epidural steroid injections, (a) Dr. Kimberþ A. Barde, who advised Plaintiff to tesume het
normal activities after treatment of aMay 2008 finger fractue, (5) Dr. JanetJohnson-Flunter,

^

state agency medical consultant, who concluded that

Plaintiff possessed the RFC to petfotm

medium wotk, but that she should avoid fumes, (6) Dt. Billy I{eon Huh, who tteated Plaintiff

for pain and who noted that she had no significant disc bulge, that she displayed mild bilateral
facet arthropathy, but that she lacked significant spinal canal stenosis, (7)

Digiaimo-Nunez, who treated Plaintiff
exaggerating many

of het

Dt.

Claudia Y.

fot het mood disordet; concluding that

claims regatding her .

she "was

. . symptoms" and ultimately discharging

Plaintiff for not being "enti-tely honest" about "het payments," (8) Dt. MargaretBarham,

a

state agency psychological consultant, who concluded that Plain:Jff appeared capable

of

pedorming simple, routine, repetitive tasks in a setting with low or medium ptoduction
tequitements, (9) Catol M. Gibbs, a sta;te agency psychological consultant, who examined

Plaintiff and found that she could understand simple, repetitive instructions and tasks but was
modetately impaired

in

dealing with

people," and (10) Dr. Mitchel Rapp,

"wotk pressutes" and dealing "effectively with othet

a

state

^geîcy

consultant who concluded that Plaintiff

could understand and remember simple tasks; could petfotm toutine, tepetitive tasks; could
telate to male cowotkers "marginal[y]; and who could zdapt to toutine interpetsonal work
demands and to stress while minimizing interpersonal demands. (Id. at 23-27 .)

9

Moteover, in setting PlaintifPs RFC, the ALJ noted at the outset that he had given

"carefilconsidetation to the entire tecord," noted agutin the body of his RFC evaluation that
he had "consideted all symptoms and the extent to which" they wete consistent with the
evidence, and noted a

conclusion based

thitd time at the close of his RFC evaluation that he reached

his

"on the totality of the evidence." (d. at 22, 27.) Finally, the AIJ

considered all the functional limitations that affected Plaintiffs RtrC in his hypothetical to the

VE through step fout and in his altetnative step fìve conclusions.

Qd. at 27-28, 62-65.)

Simply put, the ALJ's decision indicates that he considered PlaintifPs impairments in totality.6

B. Because New Evidence Makes it Impossible to Determine If the ALJ's
Decision Is Supported By Substantial Evidence, a Remand Pursuant to
Meyet

v.

Citing Melter

Astue Is Proper.
u.

Astrae, 662 tr.3d 700,705 (4th Cir. 2011), Plaintiff contends that the

opinion of Dr. Christopher L. Edwald5-¿ psychologist with the Duke University Medical
Center who treated Plaintiff from March 2010

weight. @ocket E.rtry 17 at8-1,0;Tr.
20'1.0

1,01,2.) Plaintiff submitted a letter dated August 31,

from Dr. Edwards, along with treatment fl.otes, to the Appeals Counsel after the ALJ's

June 21,20L0

6

to the ptesent-is entitled to conttolling

decision. (It.

1-1'1,,972-1,'1.1,4.) The ALJ did not have this

information befote

Cir. 2002) (concluding that anAIJ consideted
the combined effect of plaintiffs impafuments when he determined that plaintiff did not have an
impairment or combination of impaitments that met or equaled an impairment listed in the
See

e.g.,Il/ilson u. Barnhart,284F.3ð,7219,7224 (11th

regulations);Browningu. Su//iuan,958 F.2d 877,827 (8th Cfu. 1.992) (concluding that the combination

of

impairments had been properþ considered where the ALJ discussed each alleged impairment
sepatately and then found that clzimant's "impairments" did not prevent him ftom performing his
past relevant work); Egleston u. Bowen,851 F'.2d 1.244,1,247 (1Oth Cir. 1988) (concluding that where an
ALJ consideted all of a clzimant's impairments, there is nothing to suggest that they were not propedy
consideredincombinatton);Goocbu.SecjofHealthdyHumansSerul,833F.2d589,592 (6thCir. 1987)
(concluding that the faú rhat each element of the recotd was discussed individually hatdly suggests
that the totality of the tecotd was not consideted).
10

him in concluding that Plaintiff was not disabled under the Act, however, the Appeals Counsel
considered
(Id. at2,7

it and found that it "does not provide

-8.) After teviewing

a basis

for changing the [AIJ"] decision."

the recotd, the undersigned is petsuaded that temand is ptopet.

The administrative scheme fot handling Social Secudty claims petmits the claimant to

offer evidence in support of the claim initially to the ALJ. Once the ALJ renders

a decision,

the claimant is permitted to submit new and m^tetial evidence to the Appeals Council as part

of the process for requesting review of an advetse ALJ decision. 20 C.F.R.

SS 404.968,

404.970þ).7 This new evidence is then made part of the tecotd. The tegulations, however,
do not requfue the Appeals Council to expressly atticulate the weight of the newly ptoduced
evidence and reconcile

it with pteviously produced

evidence before the

ALJ.

Instead, the

Appeals Council is requhed only to make a decision on whethet to teview the case and, if
chooses not

to

graint a

revieq thete is no express tequirement that the Appeals Council

afticulate a reason for denying furthet teview. Me1er,662F.3d

Âs the Foutth Circuit recently addressed in

^t705-06.

Me1er, the

difficulty atises undet this

tegulatory scheme on teview by the courts where the newly produced evidence is made part

t Mot.

specifically,20 CFR

S

404.970(b) provides that:

If new and rnatenal evidence is submitted, the Appeals Council shall
consider the additional evidence only where it telates to the period on
ot before the date of the administrative law judge headng decision. The
Appeals Council shall evaluate the entire tecotd including the new and
material evidence submitted if it relates to the period on ot before the

date of the administrative law judge hearing decision. It will then
review the case if it finds that the administtative law judge's acdon,
findings, or conclusion is contr^ry to the weight of the evidence
curently of tecord.
20 cFR

S

it

404.e70(b).
11

of

the tecord fot putposes of substannal evidence review, but the evidence has not been weighed

by the fact findet ot reconciled with other relevant evidence. In
benefits

to a claimant

based,

Me1er,

the

A{

denied

in part, on the lack of any medical opinion from a tteating

physician addtessing restrictions. Id.

at703. ,\fter the claimant submitted a medical opinion

ftom his treating physician setting forth restrictions to the Âppeals Council, the

-Appeals

Council denied review of his case without any explanation, and the r{IJ's decision became the
decision of the Commissionet. Id. at703-04. The district court affirmed the Commissionet's
decision, but the Fourth Circuit reversed. The Fourth Circuit held that the tegulatory scheme
does not require the ,\ppeals Council to explain its reasoning when denying teview of an ALJ

decision. Id. at706.
Flowever, the Fouth Circuit ultimately concluded that

it

could not tell whether the

ALJ's decision was based upon substantial evidence. (Id. at707.) The Foutth Citcuit began
its analysis of this issue by noting in the past that it had:
affirmed an ALJ's denial of benefits aftet reviewing new evidence
ptesented to the -,\ppeals Council because we concluded that
"substantial evidence support[ed] the ALJ's findings." Smitb uChater,99 tr.3d 635, 638-39 (4th Ctr. 1,996). Convetsely, when
considetation of the tecotd as a whole tevealed that new evidence
ftom a tteating physician was not controverted by othet evidence
in the tecotd, we have reversed the ALJ's decision and held that
the ,{,LJ's denial of benefits was "rìot supported by substantial
evidence." lWilkins u. See''1, Dtþ't of Heahh dv Haman Servs., 953
F.2d93,96 (4th Ck.1,991) ( en banc )1.
MtJtry 662 F.3d at707

.

The Fouth Circuit reasoned furthet that the court is not tequired to

only affìrm or reverse if it "simply canriot detetmine whether substantial evidence suppotts the

ALJ's denial of benefits

hete." Id. The Fourth Circuit also noted
't2

that:

[t]he ALJ emphasized that the recotd befote it lacked 'tesúictions
placed on the claimant by a tteattng physician,' suggesting that
this evidentiary gap played a tole in its decision. Meyet
subsequently obtained this missing evidence ftom his tteating

physician. That evidence cortobotates the opinion of la
consulting physician], which the ALJ had tejected. But other
recotd evidence credited by the ALJ conflicts with the new
evidence....
Id.

at70l.

The Fourth Circuit observed that "no fact finder has made any findings as to the

treating physician's opinion or attempted to reconcile that evidence with the conflicting and

suppotting evidence

in the record." Id.

competing evidence

is

concluded that

Because "[a]ssessing the ptobative value

quintessentially the tole

of the fact findet," the Fourth

it "c Írflot undetake it in the fìrst instance."

of

Circuit

Id.

This case is sufficiently similat to Meyr to justiSr a rcmand. Flete, no fact finder

has

made any findings as to Dt. Edwards' opinions or has attempted to teconcile his tecotds with

the conflicting and suppoting evidence in the tecotd. ,\s noted in Me1e4 assessing the
ptobative value of competing evidence is quintessentially the role of the fact finder and this

Couttis not authodzed to undertake the analysis in the ftstinstance. Given the natute of this
new and unteconciled evidence, it is impossible to tell whethet the ALJ's decision is based on
substantial evidence. For example, Dr. Edwards'-April 13,2010 progress ¡1e1s-v/litten more

than t'wo months pdor to the AIJ's decision-opines that Plaintiff has severe and matked
symptoms and a GAtr score of 45.8

(IR. 1015-18.) Specifically, it indicates the "marked"

* The GAF ranges from zero to one hundred and is used

to

:rate

individual's psychological, social,

^î
and occupational functioning. See Am. Psychiatric Assoc., Diagnostic and Statistical Manual of
Mental Disorders ('DSM-IV") 27,32-34 (4th Ed., Text Revision 2000). Scores between 47 and 50
indicate sed.ous symptoms or a "serious impairment in social, occupational, ot school functioning."
Id.
1,3

presence in Plaintiff of (1) response to traumatic eventintense feat/helplessrì.ess, (2) exposure

to traumatic event, (3) re-expetiencing of event (flashbacks), (4) tecurent dteams/nightmares
relieving tra:umz-

-

flashbacks, (5) recurrent distressing event recollection, (6) physiological

atousal to cues about event, (7) avoid thoughts feeling or corìversations, (8) depressed mood,
(9) sweating, (10) shortness of bteath, (11) paresthesias, (12) palpitations, pounding heatt, (13)
feat of losing control ot going cîazy, (14) fear of dying, (15) chest pain ot discomfort, and (16)

anicipatory worry. (Id. at 1015-16.) This progress note indicates further the ptesence of
"severe" (1) psychological distress at cues that symbohze tawna, Q) avoid activities places ot
people, (3) insomniu, (4) exaggerated statle response, (5) back pain, (6) muscle pain, (7)
wotthlessness or guilt, (8) psychomotor agitatton ot tetatdation, (9) fatigue, (10) insomtia or

hypetsomnia.

(Id.)

New documentation such

as

this goes directly to the severity of Plaintiffls mental health

issues. As Plaintiff correcdy points out, this new material could

also teasonably be viewed as

conobotating the medical opinion of Dt. ìØilliam A. Somen that Plaintiffs ptoblems were
pdmatily psychological. Q)ocket E.rtty 17 at 10 referencingTr 475.) This new evidence
also helps

to fill at least pat of an evidenti^ry g p in the recotd regatding mental

health

by Dr. Digiaimo-Nunez in

2008.

treatment Plaintiff teceived after being dischatged

Additionally, Dr. Edward's lettet and records offet an explanation which tie Plaintiffs
symptom exaggeration not merely

to het ctedibility but also to

signifìcant underþing

psychological impairments. This is not to say that Plaintiff was necessatily disabled under the

Act during the time in question. Rather, it is to

14

say that

in light of the holding in Me1er, the

undetsigned is petsuaded that a fact finder should considet all the additional evidence and

reconcile
Coluin,

it with the conflicting and supporting

No. 7:11.-CY-1,76-FL,

201,3

evidence

in the record.

See, e.g., Schilling u.

WL 1246772, at *7 (E.D.N.C. Match 26,

201,3)

(concludingthat "the evidence that the ALJ did not address in het opinion raises too many
conflicts

of

fact, tequfuing weighing

of the probative value of competing evidence, for the

court to undettake review of the impact of the new evidence in the fìtst instance");

Creen

u.

Astrue, No. 4:11-1817-RMG, 201.3 W 267626, at x4 (D.S.C. 24 Jan. 201,3) ("Existing
regulatory standatds allow this newly presented information to be presented at the Appeals

Council stage, and Meler requires tha;t any new opinions ftom a medical source must be
weighed and teconciled by the fact findet

N,J;);
201,2)

Pace u.

Astrue,

if in conflict with other evidence credited by the

C/Â No. 1:10-3256-MGI-SVH, 201,2WL

4478370 (D.S.C. .,\ug. 3,

("The same considerations that caused the Fouth Circuit to temand Meyr are present

here. p]ike the claimant in
Council, which is now

Me1er,

Plaintiff presented additional evidence to the Appeals

in the recotd, that no factfindet

has attempted to teconcile with

conflicting and supporting evidence in the recotd.")
Defendant's arguments to the coflftary ate not persuasive. Fitst, Defendant is corect
to point out that the Dr. Edwards'-{ugust 2010 letter strays at points into teritory reserved to

the Commissioner. (Docket E.rtry

1,9

at 1,0.) Fot example, Dt. Edwards' conclusion that

Plaintiff is "not employable" is a legal determination fot the Commissioner and not a medical
soufce.

See

20 C.F.R. 5 404.1,527 (e)(1) (explaining that"fa] statement by a medical soutce that

yoù are'disabled' or 'unable to wotk' does not mean that we will determine that you

15

are

disabled");

see

also id. S 404.1527

(e)(3) (stating that "[w]e will not give any special significance to

the source of an opinion on issues reserved to the Commissioner").e Nevertheless, as made
clear above, the new evidence submitted consists of mote than this single statement.lo

Second, Defendant chancterizes

symptom magnification. (Docket Entty

Dr. Edwards' letter as equivocal on the issue of
1,9

at 10.) That letter states that "some symptom

magnification is common among patients who are: (1) suffedng from pains and psychiatdc
illness, (2) who believe their suffering is unheard andf or not sufficiendy responded to or, (3)
have not taken full advantage of clinical psychiatric services thatare avallable to them. . .

.

These patients often ptesent with an overwhelming set of tepotts of clinical symptoms

of

suffering and they often elevate scales that measure symptom magnification. In the case

of

fPlaintiffl it is my best medical judgment that all 3 explanations may vahdly apply to her
citcumstance." ((Ir. 1013) (emphasis added).) The undersigned is not convinced that such a
fine patsing of Dr. Edwatds' words is warranted hete, especially given that elsewhete in this
letter Dt. Edwards states that "þul]odest attempts to draw attention to legitìmate suffedng do'

not invalidate het history of negative wotkplace experience, her psychiatric reactions those
expetience, ot the nature and scope of her current limitations." (Id.)

e

Effective Match 26, 201.2, a tegulatory change renumbered, but did not impact the substantive
language of, the tteating physician rule. 77 Fed. Reg. 10651 -1,0657 (Feb. 23, 201.2). Given that all
material events in this action precede this nominal tegulatory change, this Opinion and
Recommendation will make use of the pre-March 26,2012 citanons.
10 Defendant
asserts in passing that "Psychologist Edwatds is neither a vocatfonal expert îor
^
physician." (Docket Ettty 79 at 1,0.) Although the opinion of a "treatlnq source" may-but need
¡1e¡-þs entitled to conttolling weight under the relevant regulations, 20 C.F.R. S 404.1,527 (d)(2), this
deference is limited to the opinion of an "acceptable" medical source. See 20 C.F.R. S 404.1502.
Licensed psychologists are included in the definition of "acceptable medical sources." Id. S
404.1,513(a). So, while Defendant's observation may be factually true, it appears legally irelevant.
16

Third, Defendant contends that the weight of the record supports the ALJ's conclusion
that Plaintiff was not disabled. (Docket Entty 19 at6-8,1,1,.) Flowevet, this atgument latgely
begs the question before the Court, which is what weight,
material and how to reconcile it with the remainder of the

has ever made any findings as to

rf

any,

to attribute to this new

recotd. As explained, no factfinder

Dt. Edwards' opinions ot has attempted to teconcile

tecotds with the conflicting and suppotting evidence

in the tecord. The

his

undersigned is

petsuaded that the Foutth Cfucuit would not have this Coutt conduct that analysis in the first
instance and that remand is apptopriatein a situation such as this.

VI. CONCLUSION
Aftet a careful consideration of the record, the Coutt fìnds that it cannot detetmine
whethet the Commissioner's decision is supported by substantial evidence. .,\ccotdingly, this

Cout RECOMMENDS that the Commissioner's decision fìnding no disability

be

REVERSED, and the matter be REMANDED to the Commissioner under senterice fout of
42U.5.C. $ a05G). The Commissioner should be directed to remand the mattet to the

fot futther

A{

administrative action as set out above. To this extent, Plaintiffs Motion for

Judgment fot Plaintiff (Docket Er,tty 16) should be GRANTED and Defendant's Motion for
Judgment on the Pleadings (Docket

Enry

18) be

DENIED.

L \ï¡þhrer
rured

Durham, Notth Carohna
November 12,2013
17

Stnrx Mqpstute

Jurþ