HEISKILL v. COLVIN
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 09/11/2015; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissi oner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings [D oc. # 15 ] should be DENIED, and Plaintiff's Motion for Judgment on the Pleadings [Doc. # 13 ] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EARNEST HEISKILL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:14CV391
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Earnest Heiskill (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social
Security denying his claims for Disability Insurance Benefits and Supplemental Security
Income under, respectively, Titles II and XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for
review.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security
Income Benefits on April 21, 2011, alleging a disability onset date of August 1, 2009, later
amended to March 31, 2011. (Tr. at 224-34, 9, 23.) 1 His applications were denied initially
(Tr. at 64-97) and upon reconsideration (Tr. at 98-133). Thereafter, Plaintiff requested an
1
Transcript citations refer to the Sealed Administrative Record [Doc. #10].
administrative hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 16263.) Plaintiff attended the subsequent hearing on October 18, 2012, along with his attorney
and an impartial vocational expert. At the hearing, Plaintiff amended his alleged onset date
to March 31, 2011. (Tr. at 9.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of
the Act. (Tr. at 18), and on March 21, 2014, the Appeals Council denied Plaintiff’s request
for review of the decision, thereby making the ALJ’s conclusion the Commissioner’s final
decision for purposes of judicial review (Tr. at 1-8).
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial
of social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However,
“the scope of . . . review of [such an administrative] decision . . . is extremely limited.” Frady
v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). 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.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets 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.
1993) (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 citations and quotation marks omitted).
2
“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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of
the [ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted).
“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472
(internal brackets omitted).
“The issue before [the reviewing 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 undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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
“The Social Security 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. The Supplemental
Security Income Program . . . 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).
2
3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if
not, could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two
steps, and establishes at step three that the impairment “equals or exceeds in severity one or
more of the impairments listed in Appendix I of the regulations,” then “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 function[al] capacity
(‘RFC’).” Id. at 179. 3 Step four then requires the ALJ to assess whether, based on that RFC,
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d at 562
(noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s ability to do
sustained work-related 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.
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4
the claimant can “perform past relevant work”; if so, the claimant does not qualify as
disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the Commissioner to prove
that a significant number of jobs exist which the claimant could perform, despite [the
claimant’s] impairments.” Hines, 453 F.3d at 563. In making this determination, 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 in the community,” the claimant qualifies as disabled. Hines,
453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial
gainful activity” since his alleged onset date. Plaintiff therefore met his burden at step one of
the sequential evaluation process. At step two, the ALJ further determined that Plaintiff
suffered from the following severe impairments: human immunodeficiency virus, diabetes
mellitus, hypertension, congestive heart failure, carpal tunnel syndrome, major depression,
and post-traumatic stress disorder. (Tr. at 11.) The ALJ found at step three that none of
these impairments met or equaled a disability listing. (Tr. at 11-12.) Therefore, the ALJ
assessed Plaintiff’s RFC and determined that he could perform light work with the following
nonexertional limitations:
5
He is able to perform tasks requiring frequent fingering and handling; has a
decrease in ability to concentrate on and attend to work tasks to the extent
that [he] can only do simple, routine[,] and repetitive tasks (i.e., can apply
commonsense understanding to carry out instructions furnished in written,
oral[,] or diagrammatic form and deal with problems involving several
concrete variables in or from standardized situations); is able to interact with
co-workers, supervisors[,] and the public on occasional basis and [is] unable to
work at jobs requiring complex decision making, constant change[,] or dealing
with crisis situations.
(Tr. at 12-13.) Based on this determination, the ALJ found under step four of the analysis
that Plaintiff could not return to any of his past relevant work. (Tr. at 17.) However, based
on the vocational expert’s testimony, the ALJ determined at step five, that, given Plaintiff’s
age, education, work experience, and RFC, he could perform other jobs available in the
national economy. (Tr. at 17-18.) Therefore, the ALJ concluded that Plaintiff was not
disabled under the Act. (Tr. at 18.)
Plaintiff now argues that substantial evidence supports neither the ALJ’s step three
determination nor his RFC assessment. Specifically, at step three, Plaintiff contends that the
ALJ failed to appropriately weigh relevant opinion evidence in finding that Plaintiff’s mental
impairments did not meet 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04 (hereinafter
“Listing 12.04”). Plaintiff then challenges the standing, walking, handling, and fingering
requirements incorporated in his RFC. (Pl.’s Br. [Doc. #14] at 2.) As set out below, the
Court ultimately agrees that the ALJ failed to adequately explain the weight given to
Plaintiff’s treating physician’s opinion, particularly with respect to the listing determination in
this case. Because remand is required on this basis, at this time the Court need not consider
the additional issues raised by Plaintiff.
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A.
Listing 12.04
Plaintiff first argues that the relevant medical evidence supports a finding that his
depression meets or medically equals Listing 12.04. Listing 12.04 encompasses affective
disorders, including depressive, manic, and bipolar syndromes, and may be met in one of
two ways. Most commonly, a claimant first must manifest certain paragraph A criteria, i.e.,
specific symptoms set out in the listing itself. Pertaining to depression, a claimant must
provide medical documentation of at least four of the following:
a.
b.
c.
d.
e.
f.
g.
h.
i.
Anhedonia or pervasive loss of interest in almost all activities; or
Appetite disturbance with change in weight; or
Sleep disturbance; or
Psychomotor agitation or retardations; or
Decreased energy; or
Feelings of guilt or worthlessness; or
Difficulty concentrating or thinking; or
Thoughts of suicide; or
Hallucinations, delusions, or paranoid thinking.
20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04(A)(1). These criteria, in turn, must result
in at least two of the following paragraph B criteria:
1.
2.
3.
4.
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace;
or
Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04(B). In other words, a claimant must meet
both paragraphs A and B. 4
In challenging the ALJ’s step three finding, Plaintiff focuses on the ALJ’s treatment
of the underlying opinion evidence offered by his treating psychiatrist, Dr. Monica Slubicki,
Alternatively, a claimant may meet the criteria of 12.04(C) alone. However, in the present case, Plaintiff
does not claim that his depression meets these alternative criteria.
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which supports his claim of a listing level impairment, and which is consistent with the
opinion of a licensed clinical social worker, Katie Jorgensen, who had been working with
Plaintiff for over 3 years.
Both Ms. Jorgensen and Dr. Slubicki opined that Plaintiff
exhibited eight of the nine characteristics described in paragraph A of Listing 12.04, as well
as marked difficulties in maintaining social functioning and maintaining concentration,
persistence, or pace, as described in paragraph B. (Tr. at 794-95, 799.) In short, both
opinions concluded that Plaintiff met the criteria of Listing 12.04. Plaintiff contends that the
ALJ erred in assigning limited weight to these opinions, and that substantial evidence fails to
support the ALJ’s listing analysis.
Dr. Slubicki is a treating physician, and her opinion must therefore be evaluated in
accordance with 20 C.F.R. §§ 404.1527(c) and 416.927(c), better known as the “treating
physician rule.” The treating physician rule generally requires an ALJ to give controlling
weight to the well-supported opinion of a treating source as to the nature and severity of a
claimant’s impairment, based on the ability of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical
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.
20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). However, if a treating source’s opinion is not
“well-supported by medically acceptable clinical and laboratory diagnostic techniques or is
inconsistent with the other substantial evidence in the case record,” it is not entitled to
controlling weight.
See Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *5; 20
C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2); see also Craig, 76 F.3d at 590; Mastro, 270 F.3d
8
at 178. Instead, the opinion must be evaluated and weighed using all of the factors provided
in 20 C.F.R. § 416.927(c)(2)(i)-(c)(6) and § 404.1527(c)(2)(i)-(c)(6), including (1) the length of
the treatment relationship, (2) the frequency of examination, (3) the nature and extent of the
treatment relationship, (4) the supportability of the opinion, (5) the consistency of the
opinion with the record, (6) whether the source is a specialist, and (7) any other factors that
may support or contradict the opinion.
Where an ALJ does not give controlling weight to a treating source opinion, she must
“give good reasons in [her] . . . decision for the weight” assigned, taking the above factors
into account. 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). “This requires the ALJ to
provide sufficient explanation for ‘meaningful review’ by the courts.” Thompson v. Colvin,
No. 1:09CV278, 2014 WL 185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see
also SSR 96-2p (noting that the decision “must contain specific reasons for the weight given
to the treating source’s medical opinion, supported by the evidence in the case record, and
must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight”).
In the present case, the ALJ gave “limited weight to Dr. Slubicki’s opinion in Exhibit
17F as the opinion contradicts her treatment notes and GAF scores.” (Tr. at 16 (citing Tr. at
794-97).)
The administrative decision does not specifically recount the details of this
opinion, which, as noted above, posits that Plaintiff’s depression results in marked
difficulties in both social functioning and maintaining concentration, persistence, or pace.
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(Tr. at 795.) 5 However, the ALJ’s discussion of Dr. Slubicki’s treatment notes reads as
follows:
Monica N. Slubicki, M.D., began treating the claimant on December 8, 2011.
During his March 6, 2012 visit, Dr. Slubicki discussed the claimant’s inability
to follow through on things. Dr. Slubicki reported the claimant was focused
on getting disability benefits. The claimant admitted that he was still taking
Remeron, but not Abilify. He expressed anxiety concerning his situation. His
mood and affect were depressed and constricted. On April 19, 2012, the
claimant reported that he had reapplied with the patients’ assistance program
(PAP) to obtain Abilify. Dr. Slubicki opined that the claimant had moderate
difficulty in social and occupational functioning with [a] GAF score of 60.
(Tr. at 15.)
The above paragraph fails to note anything in Dr. Slubicki’s treatment notes, aside
from Plaintiff’s Global Assessment of Functioning, or GAF, score, which undermines her
later findings of marked difficulties in social functioning and maintaining concentration,
persistence, or pace, nor are conflicts between Dr. Slubicki’s treatment notes and her
opinion apparent elsewhere. Rather, Dr. Slubicki’s records reveal that Plaintiff cried often
and felt overwhelmed and angry during the relevant time period. (Tr. at 621, 625, 632, 636.)
He also experienced chronic intermittent suicidal and homicidal ideation. (Tr. at 632-33,
636.) Although the ALJ noted Plaintiff’s “focus . . . on getting disability benefits” during his
treatment by Dr. Slubicki (Tr. at 15, 625), the ALJ never referenced this as a reason for
discounting Dr. Slubicki’s opinion. See Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S.
80, 87 (1943) (courts must review administrative decisions on the grounds upon which the
record discloses the action was based).
The opinion in question, completed on October 12, 2012, consists of a checklist setting out the paragraph A
and B criteria from Listing 12.04. Regarding paragraph B, the evaluating physician is then asked to place a
checkmark by “yes” or “no” indicating whether the patient’s depression has “resulted in . . . marked”
difficulties in terms of daily living, social functioning, and/or maintaining concentration, persistence, or pace.
(Tr. at 794-95.) Dr. Slubicki checked “yes” for the two latter categories. (Tr. at 795.)
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Because Dr. Slubicki’s treatment notes fail to contradict her opinion as the ALJ
alleged, the GAF scores provide the ALJ’s sole, remaining basis for discounting Dr.
Slubicki’s opinion. Until 2013, mental health clinicians commonly used GAF scores to
estimate an individual’s overall functioning level at a given point in time. Am. Psychiatric
Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed. 2000)). A score
between 51 and 60 indicated “Moderate symptoms (e.g. flat affect and circumlocutory
speech, occasional panic attacks) or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” Id. at 34. In contrast, a
score between 41 and 50 indicated “Serious symptoms,” which may include suicidal ideation
or the inability to keep a job. Id. However, even during their years of wide usage in the
mental health field, GAF scores had “no direct legal or medical correlation to the severity
requirements of social security regulations.” Powell v. Astrue, 927 F. Supp. 2d 267, 273
(W.D.N.C. 2013) (citing Oliver v. Comm’r of Soc. Sec., 415 Fed. App’x 681, 684 (6th Cir.
2011)). Rather, they were “intended to be used to make treatment decisions.” Powell, 927
F. Supp. 2d at 273 (citations omitted).
As this Court detailed in Emrich v. Colvin, the usefulness of GAF scores in the social
security context came under further scrutiny when, in May 2013, 6
the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders (“DSM”) abandoned the use of GAF scoring altogether. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 16 (5th
ed. 2013) (abandoning use of GAF scoring “for several reasons, including its
lack of conceptual clarity . . . and questionable psychometrics in routine
practice”). In Administrative Message 13066 (AM–13066), effective July 22,
2013, the SSA acknowledged that the DSM had abandoned use of GAF
The ALJ issued his decision in this case on November 16, 2012, and therefore did not have the benefit of
the SSA’s further guidance.
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scoring and instructed ALJs that they should still consider GAF scores as
opinion evidence in some circumstances. The SSA explained,
For purposes of the Social Security disability programs, when it
comes from an acceptable medical source, a GAF rating is a
medical opinion as defined in 20 CFR §§ 404.1527(a)(2) and
416.927(a)(2). An adjudicator considers a GAF score with all of
the relevant evidence in the case file and weighs a GAF rating as
required by §§ 20 CFR 404.1527(c), 416.927(c), and SSR 06–
03p, while keeping the following in mind:
The GAF is unlike most other opinion evidence we evaluate
because it is a rating. However, as with other opinion evidence,
a GAF needs supporting evidence to be given much weight. By
itself, the GAF cannot be used to “raise” or “lower” someone’s
level of function. The GAF is only a snapshot opinion about
the level of functioning. It is one opinion that we consider with
all the evidence about a person’s functioning. Unless the
clinician clearly explains the reasons behind his or her GAF
rating, and the period to which the rating applies, it does not
provide a reliable longitudinal picture of the claimant’s mental
functioning for a disability analysis.
A GAF score is never dispositive of impairment severity.
Emrich v. Colvin, __ F. Supp. 3d __, 2015 WL 867287, at *10 (M.D.N.C. 2015) (quoting
AM-13066). Accordingly, courts have found that “inconsistent GAF score[s] alone, without
further context and additional evidence, [are] insufficient to discount a treating physician’s
opinions.” Parker v. Colvin, No. 0:12-cv-00153-DCN, 2014 WL 4793711, at *3-4 (D.S.C.
Sept. 25, 2014); see also Noble v. Colvin, No. CV-13-00113-JTR, 2014 WL 1883799, at *6-9
(E.D. Wash. May 12, 2014).
Here, as noted above, the GAF scores provide the ALJ’s sole remaining basis for
discounting Dr. Slubicki’s opinion.
As explained above, this basis, without more, is
insufficient. Likewise, to the extent that the ALJ asserted that “Dr. Slubicki opined that the
claimant had moderate difficulty in social and occupational functioning,” that assertion is
12
again based only on the degree of limitation typically exhibited by a patient with a GAF
score of 60, the score assigned to Plaintiff during three of his appointments. (See Tr. at 15,
619, 623, 627.) Moreover, Dr. Slubicki treated Plaintiff five times between December 2011
and May 2012, during which time she rated Plaintiff’s GAF as 50 on two occasions, and 60
on the remaining three. (Tr. at 619, 623, 627, 634, 638.) The ALJ never mentions Plaintiff’s
lower GAF scores. These scores, chronicling “serious symptoms,” clearly belie the ALJ’s
stated reason for finding Dr. Slubicki’s opinion inconsistent. 7 In sum, the reliance on
Plaintiff’s GAF scores is not a sufficient basis for assigning limited weight to Dr. Slubicki’s
opinion.
Plaintiff also cites to the opinion of Ms. Jorgensen, the licensed clinical social worker
who had worked with him for 3 years and who found the same limitations as Dr. Slubicki.
Licensed clinical social workers are not “acceptable medical sources” as defined in 20 C.F.R.
§ 404.1527, and, as such, their opinions are never entitled to controlling weight. However,
as explained in Social Security Ruling (“SSR”) 06-03p, the opinion of a licensed clinical social
worker must still be considered and may still may be given great weight when considered in
the context of the record as a whole.
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical
sources,” such as nurse practitioners, physician assistants, and licensed clinical
social workers, have increasingly assumed a greater percentage of the
In her brief, the Commissioner alleges inconsistencies between Dr. Slubicki’s opinion and the opinions of
three non-treating physicians: Drs. Horwitz, Gibbs, and Herrera. (Def.’s Br. [Doc. #16] at 12-13.)
However, the ALJ never mentioned such inconsistencies in his decision, let alone provided them as additional
bases for assigning limited weight to Dr. Slubicki’s opinion. See Chenery Corp., 318 U.S. at 87; see also Snell
v. Apfel, 177 F.3d 128, 134 (2d Cir.1999) (a reviewing court “may not accept . . . counsel’s post hoc
rationalizations for agency action”). On remand, the ALJ should clearly explain his rationale for the relative
weights assigned to all of the medical opinions of record, particularly that of Dr. Slubicki, as a treating
physician. See 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
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treatment and evaluation functions previously handled primarily by physicians
and psychologists. Opinions from these medical sources, who are not
technically deemed “acceptable medical sources” under our rules, are
important and should be evaluated on key issues such as impairment severity
and functional effects, along with the other relevant evidence in the file.
….
As set forth in regulations at 20 CFR 404.1527(b) and 416.927(b), [the
Commissioner must] consider all relevant evidence in the case record when we
make a determination or decision about whether the individual is disabled.
Evidence includes, but is not limited to, opinion evidence from “acceptable
medical sources,” medical sources who are not “acceptable medical sources,”
and “non-medical sources” who have seen the individual in their professional
capacity. The weight to which such evidence may be entitled will vary
according to the particular facts of the case, the source of the opinion,
including that source’s qualifications, the issue(s) that the opinion is about,
and many other factors.
SSR 06-03p, 2006 WL 2329939, at *3-*4, *6; see also Foster v. Astrue, 826 F. Supp. 2d 884,
886 (E.D.N.C. 2011) (“SSR 06–03p dictates that ALJs must at least consider the opinions of
these non-acceptable medical sources, especially when there is evidence in the record to
suggest that a non-acceptable medical source had a lengthy relationship with the claimant
and can present relevant evidence as to an opinion about the claimant's impairment or ability
to work.”). In the present case, it appears that the real concern is not the ALJ’s treatment of
Ms. Jorgensen’s opinion standing alone, but rather the ALJ’s failure to explain the limited
weight given to Dr. Slubicki’s treating source opinion, particularly in light of the additional
support provided by the opinion of Ms. Jorgensen. As discussed above, the Court concludes
that the ALJ’s failure to adequately explain the weight given to the treating source opinion of
Dr. Slubicki warrants remand in this case, as it is within the province of the ALJ – not the
Court – to weigh the evidence in light of the applicable regulations.
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Finally, the Court notes that Plaintiff has filed an Addendum [Doc. #17], raising the
potential applicability of the decision of the Court of Appeals for the Fourth Circuit in
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). The Fourth Circuit’s decision in Mascio may
be implicated in the present case. However, the Court need not order further briefing on
the Macio issue in this case, in light of the concerns and issues outlined above. On remand,
the ALJ can address the issues noted herein and the additional issues raised by Plaintiff,
including the potential Mascio issues.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for proceedings consistent with this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #15] should be DENIED, and
Plaintiff’s Motion for Judgment on the Pleadings [Doc. #13] should be GRANTED.
However, to the extent that Plaintiff’s motion seeks an immediate award of benefits, it
should be DENIED.
This, the 11th day of September, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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