PRATT v. COLVIN
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 11/17/2015. IT IS RECOMMENDED that the Commissioner's decision finding no disability be reversed and that the matter be remanded under sent ence four of the 42 U.S.C. § 405(g), for further administrative proceedings. Plaintiff's Motion for Judgment for on the Pleadings 11 should be granted in part, and Defendant's Motion for Judgment on the Pleadings 14 should be denied. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALEASE SABRINA PRATT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:13CV320
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Alease Sabrina Pratt, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claim for Supplemental Security Income (“SSI”).
(See Docket Entry 2.)
The Court has before it the certified
administrative record (cited herein as “Tr. __”), as well as the
parties’ cross-motions for judgment (Docket Entries 11, 14).
For
the reasons that follow, the Court should remand this matter for
further administrative proceedings.
PROCEDURAL HISTORY
Plaintiff applied for SSI, alleging a disability onset date of
April 1, 2010.
(Tr. 208-11.)
Upon denial of that application
initially (Tr. 70-81, 116-24) and on reconsideration (Tr. 82-95,
126-35),
Plaintiff
requested
a
hearing
de
novo
before
an
Administrative
Law
Judge
(“ALJ”)
(Tr.
125).
Plaintiff,
her
attorney, and a vocational expert (“VE”) attended the hearing
(Tr. 31-66.)
The ALJ subsequently determined that Plaintiff did
not qualify as disabled under the Act.
(Tr. 15-26.)
The Appeals
Council thereafter denied Plaintiff’s request for review, thus
making the ALJ’s determination the Commissioner’s final decision
for purposes of judicial review.
(Tr. 1-5.)
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since May 12, 2010, the application date.
2.
[Plaintiff] has the following severe impairments:
degenerative disc disease (DDD), sarcoidosis, diabetes
mellitus, carpal tunnel syndrome (CTS), essential
hypertension, obesity, major depressive disorder (MDD),
and a history of substance abuse/addiction disorder (both
drug and alcohol).
. . .
3.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with the following
additional limitations: pushing-pulling at the light
level; no climbing of ladders, ropes, or scaffolds; no
more than occasional balancing and climbing ramps and
stairs; no more than frequent stooping, crouching,
kneeling, and crawling; no more than frequent[] handling
and fingering; no exposure to moving machinery,
unprotected heights, and poorly ventilated areas; must
avoid concentrated exposure to irritants (such as fumes,
2
odors, dust, and gases); can only perform simple,
routine, repetitive tasks, in a low-stress job (defined
as having no more than occasional decision-making
required and no more than occasional changes in the work
setting); no production rate or paced work (such as would
be done on an assembly line); and no more than occasional
interaction with the public and co-workers.
. . .
5.
[Plaintiff] is capable of performing past relevant
work as a housekeeping cleaner.
This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
6.
[Plaintiff] has not been under a disability, as
defined in the . . . Act, since May 12, 2010, the date
the application was filed.
(Tr. 20-26 (internal parenthetical citations omitted).)1
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given
those limitations, the Court should remand this case for further
administrative proceedings.
1
Alternatively, the ALJ relied on the testimony of the VE (see Tr. 63) to
find at step five of the SEP that Plaintiff could perform the unskilled,
sedentary jobs of addresser, sorter, and almond blancher, all existing in
significant numbers in the national economy (see Tr. 25-26).
3
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
reviewing
court must
uphold
the
factual
findings
Instead, “a
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 Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
4
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security 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).
When confronting that issue, the Court must take 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)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
promulgated . . . detailed regulations incorporating longstanding
medical-vocational evaluation policies that take into account a
2
The Act “comprises two disability benefits programs. The Social Security
Disability Insurance Program . . . provides benefits to disabled persons who have
contributed to the program while employed. [SSI] . . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).
5
claimant’s age, education, and work experience in addition to [the
claimant’s] medical condition.”
Id.
“These regulations establish
a ‘sequential evaluation process’ to determine whether a claimant
is disabled.”
Id. (internal citations omitted).
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).3
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
3
“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
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
(‘RFC’).”
Id. at 179.4
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 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 in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
4
“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.
5
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
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[t]he ALJ committed error by failing to give controlling
weight to the opinions of [treating physician] Dr. Paul Tawney”
(Docket Entry 12 at 2);
(2) “[t]he ALJ erred in failing to re-contact Dr. Tawney . . .
[because] there was at worst a conflict between Dr. Tawney’s MSS
and his treating notes” (id. at 9); and
(3)
“[t]he
ALJ’s
reasons
for
discrediting
[Plaintiff]
regarding her back pain do not support his credibility finding”
(id. at 10).
Defendant
contends
otherwise
and
urges
evidence supports the finding of no disability.
that
substantial
(Docket Entry 15
at 5-15.)
Treating Physician’s Opinions
Plaintiff first argues that the ALJ should have assigned
controlling weight to the opinions of her treating physician, Dr.
Tawney, reflected on a “Medical Source Statement - Physical”
(“MSS”) Dr. Tawney completed on September 29, 2011.
(Docket Entry
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.”).
8
12 at 2, 5 (citing Tr. 610-14).)6
According to Plaintiff, Dr.
Tawney’s MSS equates to a “stat[ement] that because of severe low
back
pain,
sacroiliac
pain,
sciatica,
disease, [Plaintiff] was disabled.”
and
degenerative
disc
(Id. at 5 (citing Tr. 610).)
Plaintiff further asserts that, although “[t]he ALJ stated that Dr.
Tawney’s opinion was ‘inconsistent with the medical evidence of
record, which shows only conservative treatment and significant
improvement with such treatment’” (id. (citing Tr. 24)), “[t]he ALJ
did not specify any inconsistencies between Dr. Tawney’s opinion
and the medical record,” which constituted “reversible error” (id.
(citing Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011),
Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004), Richards
v. Astrue, No. 1:12–cv–832, 2012 WL 7006345, at *10 (N.D. Ohio Dec.
17, 2012) (unpublished), Ward v. Astrue, No. 3:10–cv–1031–J–MCR,
2012 WL 695702, at *6 (M.D. Fla. Mar. 5, 2012) (unpublished),
Morrison v. Barnhart, 278 F. Supp. 2d 1331, 1336 (M.D. Fla.
2003))).
Plaintiff
Plaintiff
also
underwent
challenges
“only
the
ALJ’s
conservative
observations
treatment”
and
that
that
treatment led to “significant improvement” (id. at 7 (citing Tr.
6
Plaintiff provides the date of the MSS as “September 29, 2011” (Docket
Entry 12 at 5), and Defendant describes the date as “July 2011” (Docket Entry 15
at 5). Indeed, the numeral representing the month in the date on the MSS appears
to reflect the number “9” marked over by the number “7.” (Tr. 615.) The Court
need not resolve this ambiguity, however, as no doubt exists that the ALJ
considered the MSS prior to issuing his decision. (See Tr. 24.)
9
23)),
because
(“TENS”)
a
unit,
transcutaneous
physical
electrical
therapy,
steroid
nerve
stimulation
injections,
and
medications such as Neurontin and Zanaflex constitute “aggressive
treatment” (id. (emphasis in original) (citing Jenkins v. Astrue,
No. 5:08–CV–248–D(3), 2009 WL 122762, at *8 (E.D.N.C. Jan. 16,
2009) (unpublished))), and any relief Plaintiff obtained from such
treatment “did not last” (id.).
that
Dr.
Tawney’s
opinions
Plaintiff additionally contends
harmonized
with
the
opinions
of
consultative examiner, Dr. Shannon Ellis (id. at 8 (citing Tr. 37778)), that only the opinions of the non-examining state agency
consultants conflicted with Dr. Tawney’s opinions, and that their
opinions “cannot be persuasive because they did not have the
benefit of Dr. Tawney’s opinion, nor . . . his vantage point as a
treating physician” (id.). Plaintiff’s contentions warrant relief.
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
§
416.927(c)
(“[T]reating
sources
.
.
.
provide
20 C.F.R.
a
detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports
of
examinations
individual
or
brief
examinations,
such
hospitalizations.”).
as
The
consultative
rule
also
recognizes, however, that not all treating sources or treating
10
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords an opinion.
20 C.F.R. § 416.927(c)(2)(ii).
Moreover, as
subsections (2) through (4) of the rule describe in great detail,
a treating source’s opinion, like all medical opinions, deserves
deference only if well-supported by medical signs and laboratory
findings and consistent with the other substantial evidence in the
case record.
opinion
is
20 C.F.R. § 416.927(c)(2)-(4).
not
supported
by
clinical
“[I]f a physician’s
evidence
or
if
it
is
inconsistent with other substantial evidence, it should be accorded
significantly less weight.”
Craig, 76 F.3d at 590 (emphasis
added).7
7
Plaintiff asserts that “rejection of the treating physician’s opinion
must be based on ‘persuasive contradictory evidence,’” citing Johnson v.
Barnhart, 434 F.3d 650 (4th Cir. 2005).
(Docket Entry 12 at 3.)
However,
Plaintiff’s phrasing of the “treating physician rule” as including the
“persuasive contradictory evidence” language no longer represents the governing
standard. See Stroup v. Apfel, No. 96–1722, 205 F.3d 1334 (table), 2000 WL
216620, at *5 (4th Cir. Feb. 24, 2000) (unpublished) (expressly rejecting
“persuasive contradictory evidence” standard and noting that “[t]he 1991
regulations supersede[d] the ‘treating physician rule’ from our prior case law”);
Shrewsbury v. Chater, No. 94–2235, 68 F.3d 461 (table), 1995 WL 592236, at *2 n.5
(4th Cir. Oct. 6, 1995) (unpublished) (observing that, “[a]s regulations
supersede contrary precedent, the cases cited by [the plaintiff] defining the
scope of the ‘treating physician rule’ decided prior to [the 1991] regulations
are not controlling” (internal citation omitted)); Brown v. Astrue, Civil Action
No. CBD10–1238, 2013 WL 937549, at *4 (D. Md. Mar. 8, 2013) (unpublished)
(deeming “persuasive contradictory evidence” a “defunct legal standard” in light
of 1991 regulations); Benton v. Astrue, Civil Action No. 0:09–892–HFF–PJG, 2010
WL 3419272, at *1 (D.S.C. Aug. 30, 2010) (unpublished) (holding that 1991
regulation “supersedes any prior Fourth Circuit’s common law treating physician
rule that is contrary to it”); Winford v. Chater, 917 F.Supp. 398, 400 (E.D. Va.
1996) (finding “persuasive contrary evidence . . . the wrong legal standard”);
Ward v. Chater, 924 F. Supp. 53, 55–56 (W.D. Va. 1996) (recognizing that 1991
regulations supersede “persuasive contradictory evidence” standard). The fact
that, in Johnson, the Fourth Circuit stated that an ALJ could discredit treating
physician opinion in light of “persuasive contrary evidence,” Johnson, 434 F.3d
at 654 n.5, does not mean (as Plaintiff suggests) that any rejection of such
11
In this case, Dr. Tawney opined on the MSS that Plaintiff
suffered from “low back pain, sacroiliac pain, sciatica, and
degenerative disc [disease]” (Tr. 610) and that, as a result of
those impairments, Plaintiff could sit for one hour at a time and
for a total of three hours in a work day, could stand and walk for
less than 15 minutes at a time and for two hours total in a work
day, and could lift and carry 20 pounds occasionally and ten pounds
frequently (Tr. 611-12).
In addition, Dr. Tawney noted that
Plaintiff’s medications caused “drowsiness” and “dizziness” (Tr.
611), and that Plaintiff would miss work three days per month (Tr.
614).
Dr. Tawney concluded that Plaintiff’s impairments had
“persisted with the restrictions as outlined in [the MSS] at least
since . . . [April 1, 2010].”
(Tr. 615.)
Here, after discussing Dr. Tawney’s opinions on the MSS, the
ALJ described the weight he assigned to those opinions in one
sentence:
“I
give
little
weight
to
this
opinion,
as
it
is
inconsistent with the medical evidence of record, which shows only
conservative
treatment
and
significant
improvement
with
such
treatment.”
(Tr. 24.)
However, the ALJ did not, either in his
analysis of Dr. Tawney’s opinions (see id.) or at any other point
opinion “must be based on ‘persuasive contradictory evidence’” (Docket Entry 12
at 3 (emphasis added)). See, e.g. Craig, 76 F.3d at 590 (recognizing that, if
treating source’s opinion “is not supported by clinical evidence or it is
inconsistent with other substantial evidence, it should be accorded significantly
less weight” (emphasis added)).
12
in his decision (see Tr. 20-26), cite to substantial evidence
demonstrating
“conservative
treatment”
for
or
“significant
improvement” in Plaintiff’s lower back and leg symptoms.8
Regarding conservative treatment, the ALJ acknowledged only
that Plaintiff’s treatment for her back and leg pain included
“medication, [a] TENS unit, and injections.” (Tr. 23.) The record
actually substantiates that, in response to Plaintiff’s repeated
complaints of back and leg pain, Dr. Tawney ordered physical
therapy on at least two occasions (both aquatic and non-aquatic)
(see Tr. 414, 417, 419-20, 426), prescribed Zanaflex, Lidoderm
patches, and Neurontin (gabapentin) (see Tr. 412, 417, 426),9
administered both transforaminal and sacroiliac injections (see Tr.
408, 412, 523, 527), procured a TENS unit for Plaintiff (see Tr.
420), and referred Plaintiff to a pain management clinic (see Tr.
521).
Under comparable circumstances, this Court has required
explanation as to why a combination of such measures taken to
alleviate pain represents “conservative treatment”:
8
The ALJ confined his discussion of the medical evidence to one paragraph
that lacked any citations to particular medical records. (See Tr. 23.) Instead,
at the conclusion of that paragraph, the ALJ provided one generic string cite to
all of the medical record exhibits. (Id.)
9
“[N]eurontin/gabapentin [is] an anticonvulsant used to treat nerve pain
. . . .” Fonseca v. Astrue, No. EDCV10-470MAN, 2011 WL 2412627, at *4 (C.D. Cal.
June 10, 2011) (unpublished); see also McClesky v. Astrue, 606 F.3d 351, 352 (7th
Cir. 2010) (labeling Neurontin a “powerful and expensive drug[] that many people
are reluctant to take”); In re Neurontin Mktg., Sales Practices, and Prods. Liab.
Litig., 612 F. Supp. 2d 116, 137 (D. Mass. 2009) (discussing federal government
study “establishing an association between Neurontin and suicidality”).
13
[T]he ALJ failed to explain why he termed Plaintiff’s
treatment for his back conditions after the alleged onset
date “generally routine and conservative,” when the
record from that period (as noted by the ALJ) reflected
that: 1) Plaintiff underwent repeated lysis of adhesions
of his lumbar spine and lumbar and cervical ne[rve]
blocks; and 2) Plaintiff took prescriptions of Lorcet,
Endocet, Percocet, oxycodone, and Neurontin.
Given the invasive and extensive character of the spinal
injection therapies endured by Plaintiff, as well as the
powerful and dangerous nature of his prescriptions, the
Court should not affirm the characterization of his
treatment as “generally routine and conservative,”
without further explanation by the ALJ.
See, e.g.,
Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir.
2010) (questioning whether “regimen of powerful pain
medications and injections can constitute ‘conservative
treatment’”); Grisel v. Colvin, No. CV13-623JPR, 2014 WL
1315894, at *12 (C.D. Cal. Apr. 2, 2014) (unpublished)
(noting that “treatment with narcotic pain relievers has
generally been found to be nonconservative when combined
with . . . steroid or epidural injections”).
Kelso v. Colvin, No. 1:12CV331, 2012 WL 3748640, at *8 (M.D.N.C.
Jul. 30, 2014) (unpublished) (internal quotations and citations
omitted), recommendation adopted, slip op. (M.D.N.C. Aug. 25, 2014)
(Eagles, J.).10
Plaintiff’s
Thus, the ALJ’s undeveloped characterization of
treatment
for
her
lower
back
and
leg
pain
as
“conservative” does not constitute a valid basis to discount Dr.
Tawney’s opinions.
10
Plaintiff’s reliance on Jenkins, 2009 WL 122762, at *8 (see Docket Entry
12 at 7), misses the mark. In Jenkins, the court merely quoted portions of the
ALJ’s decision in which the ALJ characterized treatment such as “steroid
medication, epidural injections, application of TENS equipment, or enrollment in
physical therapy or a pain management program,” as “aggressive.” (Id.) The
court did not discuss, much less hold, that such measures amounted to “aggressive
treatment.” (Id.)
14
Moreover,
Dr.
Tawney’s
records
do
not
show
“significant
improvement” in Plaintiff’s lower back and leg pain with the abovedescribed treatment.
As a general matter, Dr. Tawney’s treatment
records reflect that Plaintiff frequently complained of either no
improvement or worsening in her lower back and leg pain, regardless
of the treatment she underwent.
(“mild
worsening”),
505
(See Tr. 415 (“no change”), 411
(“mild
worsening”),
519
(“severe
worsening”), 525 (“mild worsening”).) More specifically, Plaintiff
reported to Dr. Tawney (and to the ALJ at the hearing) that she
could not endure physical therapy secondary to pain.
415.)
(See Tr. 45,
Further, although Plaintiff initially informed Dr. Tawney
that her TENS unit did help to reduce her pain (see Tr. 415), the
unit malfunctioned a few months later (see Tr. 525), and the record
does not reflect that a TENS unit was successfully employed at any
point thereafter
(see
Tr. 522,
571).
Finally,
although
the
sacroiliac injections initially resulted in “marked improvement” in
Plaintiff’s back pain (Tr. 408; see also Tr. 505), she denied that
they helped her leg pain (see id.), and her back pain soon
returned, eventually reaching 10 out of 10 in intensity on the pain
scale (see Tr. 519).
In short, substantial evidence fails to
support the ALJ’s finding that Plaintiff’s lower back and leg pain
“significantly improve[d]” (Tr. 24), and thus this finding cannot
constitute a basis for affording “little weight” to Dr. Tawney’s
opinions (id.).
15
Plaintiff
contends
that
the
consistency
of
Dr.
Tawney’s
opinions with the opinions of consultative examiner Dr. Ellis
provides further support for Dr. Tawney’s opinions.
Entry 12 at 8 (citing Tr. 377-78).)
(See Docket
Both physicians essentially
agree with regard to Plaintiff’s abilities to stand, walk, lift,
and carry (compare Tr. 378, with Tr. 612), and differ only in the
total amount of time that Plaintiff can sit in an eight-hour work
day (compare Tr. 378 (six hours), with Tr. 612 (three hours).
Thus, Dr. Ellis’ opinions do provide some support for Dr. Tawney’s
opinions.
Rather than recognizing this consistency, however, the
ALJ assigned “little weight” to Dr. Ellis’ opinions for the same
reason that he discounted Dr. Tawney’s, i.e., that the opinions
“[are] inconsistent with the medical evidence of record, which
shows only conservative treatment and significant improvement with
such treatment” (Tr. 24), reasons which, as discussed above,
substantial evidence fails to support.11
11
Plaintiff additionally argues that only the opinions of the
non-examining state agency consultants conflicted with Dr. Tawney’s opinions, and
that their opinions “cannot be persuasive because they did not have the benefit
of Dr. Tawney’s opinion, nor . . . his vantage point as a treating physician.”
(Docket Entry 12 at 8.) Controlling and persuasive precedent, however, makes
clear that the consistency of state agency consultants’ opinions with the record
as a whole, including those records post-dating such opinions, constitutes the
proper focus of the inquiry. See Gordon v. Schweiker, 725 F.2d 231, 235 (4th
Cir. 1984) (ALJs may rely on the opinions of non-examining physicians when such
opinions find consistency with the whole of the record); Thacker v. Astrue, 2011
WL 7154218, at *6 (W.D.N.C. Nov. 28, 2011) (unpublished) (“The fact that the
state agency physician did not have access to the entire evidentiary record —
because the record was incomplete at the time of the assessment — is
inconsequential as the ALJ considered the entire evidentiary record and
substantial evidence supports his determination.”); Bryant v. Astrue, No.
3:08CV719, 2009 WL 6093969, at *9 & n.11 (E.D. Va. July 15, 2009) (unpublished)
(affirming ALJ’s decision to give non-examining state agency consultants’
16
Defendant argues that the ALJ’s discussion of Plaintiff’s
“mildly impaired” activities of daily living also supported his
decision to discount Dr. Tawney’s opinions.
(citing Tr. 21, 24).)
(Docket Entry 15 at 9
However, the ALJ discussed Plaintiff’s
activities of daily living not as support for assigning “little
weight” to Dr. Tawney’s opinions (Tr. 24), but in the context of
his analysis of whether Plaintiff’s mental impairments met or
equaled the criteria of any listed impairments (see Tr. 21), and
then again, briefly, when evaluating Plaintiff’s credibility with
regards to her alleged “social isolation” (Tr. 24 (“[Plaintiff]
reports social isolation, but recently noted to her counselor that
she participates in ‘pleasurable activities in the community with
family and friends’ (which I note is consistent with a third-party
report of [Plaintiff’s] activities of daily living).”)). The Court
cannot consider post-hoc rationalizations. See Anderson v. Colvin,
No. 1:10CV671, 2014 WL 1224726, at *1 (M.D.N.C. Mar. 25, 2014)
(unpublished) (Osteen, C.J.) (citing Securities & Exch. Comm'n v.
assessments great weight as “consistent with the actual medical findings and
conservative treatment of the claimant’s treating physicians, and with [the
claimant’s] admitted activities of daily living” even though such consultants
“did not have the opportunity to observe the claimant or the opportunity to
consider additional evidence submitted subsequent to their review of the
record”); Bracey v. Astrue, No. 5:07–CV–265–FL, 2009 WL 86572, at *3 (E.D.N.C.
Jan. 6, 2009) (unpublished) (finding no error in ALJ’s reliance on state agency
consultants’ opinions where “treatment notes and clinical findings . . .
submitted after the [consultants’s] assessments indicate[d] similar complaints
and assessments as those reviewed by the . . . consultants” and noting that the
ALJ considered the additional evidence, which did “not demonstrate a marked
change for the worse in [the] plaintiff’s health”).
In any event, the ALJ
clearly did not find the state agency consultants’ opinions “persuasive” and
afforded “little weight” to those opinions. (Tr. 24.)
17
Chenery Corp., 332 U.S. 194 (1947)).
To the contrary, Chenery
limits the Court to reviewing the rationalizations initially put
forth by an administrative agency.
Id.
The ALJ’s unsupported discounting of Dr. Tawney’s opinions
takes on even more significance in this case, because the ALJ
discounted all of the medical opinions of record.
(See Tr. 24
(assigning
Dr.
Tawney,
state
agency
medical
opinion
“little
consultative
consultants).)
weight”
examiner
The
to
Dr.
the
opinions
Ellis,
of
absence
and
credited
any
of
the
regarding Plaintiff’s remaining ability to perform basic workrelated activities complicates the reviewing court’s ability to
trace the ALJ’s reasoning concerning Plaintiff’s RFC. See Clifford
v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (“[The ALJ] must build
an accurate and logical bridge from the evidence to his [or her]
conclusion.”); see also Wyatt v. Bowen, No. 89-2943, 887 F.2d 1082
(table),
1989
WL
117940,
at
*4
(4th
Cir.
Sept.
11,
1989)
(unpublished) (“[T]he duty of explanation will be satisfied when
the
ALJ
presents
determinations
‘[a
reviewing
sufficiently
court]
articulated
to
with
findings
permit
and
meaningful
judicial review,’ which must include specific reference to the
evidence producing [the ALJ’s] conclusion.” (quoting DeLoatche v.
Heckler, 715 F.2d 148, 150 (4th Cir. 1983), and citing Hammond v.
Heckler, 765 F.2d 424, 426 (4th Cir. 1985))).
18
Furthermore,
the
ALJ’s
failure
to
properly
support
his
decision to discount Dr. Tawney’s opinions does not constitute
harmless error. See generally Fisher v. Bowen, 869 F.2d 1055, 1057
(7th Cir. 1989) (“No principle of administrative law or common
sense requires us to remand a [Social Security] case in quest of a
perfect opinion [from an ALJ] unless there is reason to believe
that the remand might lead to a different result.”).
Here, Dr.
Tawney’s opinions regarding Plaintiff’s maximum abilities to sit,
stand, and walk in an eight-hour work day restrict Plaintiff to
less than a full range of even sedentary work (see Tr. 612),12 and
would preclude her from performing her past relevant work as a
housekeeper, as well as all of the jobs cited by the VE and relied
upon by the ALJ in his alternative step five finding.
Thus,
clearly, reevaluation of Dr. Tawney’s opinions could lead to a
different outcome in this case.
In sum, the ALJ committed reversible error in his evaluation
of Dr. Tawney’s opinions. In light of the recommendation to remand
12
The regulations define sedentary work as “involving lifting no more than
10 pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.”
20 C.F.R.
§ 416.967(a). “‘Occasionally’ means occurring from very little up to one-third
of the time. Since being on one’s feet is required ‘occasionally’ at the
sedentary level of exertion, periods of standing or walking should generally
total no more than about 2 hours of an 8-hour workday, and sitting should
generally total approximately 6 hours of an 8-hour workday.” Social Security
Ruling 83-10, Titles II and XVI: Determining Capability to Do Other Work – the
Medical-Vocational Rules of Appendix 2, 1983 WL 31251, at *5 (1983).
19
this case, and the fact that, upon remand, the ALJ will reassess
Dr. Tawney’s opinions (and therefore also Plaintiff’s credibility
and the RFC), the Court need not consider Plaintiff’s remaining two
issues on review involving the ALJ’s duty to recontact Dr. Tawney
and the assessment of Plaintiff’s credibility.
If Plaintiff
believes that information in Dr. Tawney’s treatment notes remains
important, she may pursue that matter administratively.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be reversed and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings to include reevaluation of the opinions
of Plaintiff’s treating physician, Dr. Tawney.
As a result,
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 11)
should be granted in part (i.e., to the extent that it requests
remand), and Defendant’s Motion for Judgment on the Pleadings
(Docket Entry 14) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 17, 2015
20
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