WILLIAMS v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION as to MARSHALL R. WILLIAMS, signed by MAG/JUDGE L. PATRICK AULD on 8/14/2015, that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence four of 42 U. S.C. § 405(g), for further administrative proceedings that properly address the opinions of Drs. de Gent and Whitfield in accordance with 20 C.F.R. §§ 404.1527(c), 416.927(c). As a result, Defendant's Motion for Judgment on the P leadings (Docket Entry 12 ) should be denied and Plaintiff's Motion for Judgment Reversing the Decision of the Commissioner of Social Security (Docket Entry 9 ) should be granted in part (i.e., to the extent it requests remand). (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARSHALL R. WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:14CV423
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Marshall R. Williams, 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
claims
for
Disability
Insurance
(“DIB”) and Supplemental Security Income (“SSI”).
1.)
Benefits
(Docket Entry
The Court has before it the certified administrative record
(cited herein as “Tr. __”), as well as the parties’ cross-motions
for judgment (Docket Entries 9, 12).
For the reasons that follow,
the Court should remand this matter for further administrative
proceedings.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on February 8,
2011, alleging a disability onset date of December 31, 2008.
135-41, 142-48.)
60-76,
96-103)
(Tr.
Upon denial of those applications initially (Tr.
and
on
reconsideration
(Tr.
77-95,
105-13),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 114-15).
Plaintiff (proceeding pro se) and a
vocational expert attended the hearing.
(Tr. 24-59.)
By decision
dated March 13, 2013, the ALJ determined that Plaintiff did not
qualify as disabled under the Act.
(Tr. 13-23.)
On April 22,
2014, the Appeals Council denied Plaintiff’s request for review
(Tr.
1-5),
making
the
ALJ’s
ruling
the
Commissioner’s
final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2009.
2.
[Plaintiff] has not engaged in substantial gainful
activity since December 31, 2008, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
aortic valve disorder (also described as systolic cardiac
murmur); peripheral artery disease; and osteoarthritis of
the hip.
. . . .
4.
[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.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with exceptions:
[Plaintiff] can lift up to twenty pounds occasionally,
and he can lift and carry up to ten pounds frequently.
He has the ability to operate foot controls with the
right extremity frequently but not continuously. He can
occasionally climb stairs, but he can never climb ropes
or scaffolds.
He can occasionally balance, stoop, or
2
crouch. He must avoid concentrated exposure to irritants
such as fumes, odors, gases, and poorly ventilated areas.
. . . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from December 31, 2008, through
the date of this decision.
(Tr. 18-23 (internal parenthetical citations omitted).)
II.
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 [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
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).
Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
3
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 citations 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
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 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
4
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)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
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
1
The Act “comprises two disability benefits programs. [DIB] . . . 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
‘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. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained 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
6
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ “incorrectly found that treating cardiologist Dr.
[Guy]
[d]e
Gent’s
medical
opinion[s]
regarding
[Plaintiff’s]
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
shortness of breath on exertion [were] entitled to little weight”
(Docket Entry 10 at 3 (citing Tr. 269, 270)); and
(2) “[n]ew treating medical source opinion evidence [from
orthopedist
Dr.
Peter
Whitfield,]
incorporated
into
the
administrative record by the Appeals Council[,] requires remand
. . . under the Fourth Circuit Court of Appeals[’s] decision [in]
Meyer v. Astrue, [662 F.3d 700 (4th Cir. 2011)]” (id. at 9; see
also Tr. 288 (new evidence)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 13 at 5-13.)
Dr. de Gent’s Opinions
Plaintiff first faults the ALJ for giving “little weight” to
the opinions of Plaintiff’s treating cardiologist, Dr. de Gent,
that Plaintiff suffered from “significant shortness of breath on
minimal exertion” (Tr. 270), and that “[f]rom a cardiac perspective
. . . [Plaintiff] is experiencing significant morbidity in the form
of decreased exercise tolerance and shortness of breath related to
his underlying valvular heart disease” (Tr. 269).
Entry 10 at 3, 7 (citing Tr. 21).)
(See Docket
More specifically, Plaintiff
disputes the ALJ’s conclusion that Dr. de Gent’s opinions are
“inconsistent with his acknowledg[]ment that [Plaintiff’s] aortic
valve disorder does not require surgery and his earlier medical
finding that [Plaintiff] did not have significant coronary artery
disease.”
(See id. at 7-9 (citing Tr. 21).)
8
According to
Plaintiff, “medical literature” supports Dr. de Gent’s opinion that
Plaintiff’s
aortic
insufficiency
causes
him
to
suffer
from
“significant dyspnea” (Tr. 269) despite not yet reaching a surgical
level
of
severity
(Docket
Entry
10
at
8
(citing
http://www.mayoclinic.org/diseases-conditions/aortic-valveregurgitation/basics/symptoms/con-20022523
and
http://www.mayo
clinic.org/diseases-conditions/aortic-valve-regurgitation
/basics/definition/con-20022523)).
Further, Plaintiff urges the
irrelevancy of the finding that he does “not have significant
coronary artery disease” (Tr. 21), because “aortic insufficiency is
completely unrelated to coronary artery disease” (Docket Entry 10
at 9).
Plaintiff’s arguments on these points have merit.
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.
20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2) (“[T]reating sources . . . provide
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 individual examinations, such as
consultative examinations or brief hospitalizations.”).
The rule
also recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
9
affords
an
opinion.
See
20
C.F.R.
§§
404.1527(c)(2)(ii),
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.
§§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4).
opinion
is
not
supported
by
clinical
See
20
C.F.R.
“[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).
Here, the ALJ’s evaluation of Dr. de Gent’s opinions fails to
comport with the above-cited regulations and Craig.
matter,
the
ALJ
failed
to
identify
which
of
As an initial
Dr.
de
Gent’s
statements lacked consistency with his findings regarding heart
surgery and coronary artery disease.
(See Tr. 21.)
In that
regard, the ALJ identified only “Dr. [de] Gent’s letter . . . [in]
support of [Plaintiff’s] application for disability.”
(Id.)
The
Court should decline to assess the consistency of Dr. de Gent’s
opinions with the record without a clear statement from the ALJ as
to
which
statements
require
scrutiny.
See
generally
Social
Security Ruling 96–2p, Titles II and XVI: Giving Controlling Weight
to Treating Source Medical Opinions, 1996 WL 374188, at *5 (July 2,
1996) (requiring that an ALJ’s decision “contain specific reasons
10
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”); see also Bray v.
Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir.
2009) (“Long-standing principles of administrative law require us
to review the ALJ’s decision based on the reasoning and factual
findings offered by the ALJ - not post hoc rationalizations that
attempt to intuit what the adjudicator may have been thinking.”)
(citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
Moreover, even if the Court can proceed under the assumption
(as Plaintiff did, see Docket Entry 10 at 3) that the ALJ targeted
Dr. De Gent’s opinions that Plaintiff suffered from “significant
shortness of breath on minimal exertion” (Tr. 270), and that
“[Plaintiff] is experiencing significant morbidity in the form of
decreased exercise tolerance and shortness of breath related to his
underlying valvular heart disease” (Tr. 269), the ALJ’s stated
bases for discounting those opinions lack validity for several
reasons.
First, Dr. de Gent emphasized that, even absent an
immediate need for surgery, Plaintiff “nevertheless does have
significant
dyspnea”
and
that
Plaintiff
“is
experiencing
significant morbidity in the form of . . . shortness of breath.”
(Id.) Thus, by focusing on Dr. de Gent’s opinion whether Plaintiff
11
needed heart valve surgery, the ALJ overlooked Dr. de Gent’s more
pertinent
opinion
that
Plaintiff’s
shortness
of
breath
significantly limited him, regardless of whether his condition
presently warranted surgery.
Second, the fact that Plaintiff’s diagnostic testing showed
that he did not have significant coronary artery disease (an
entirely different medical condition than aortic insufficiency, see
http://www.mayoclinic.org/diseases-conditions/coronary-artery-disease/basics/definition/con-20032038 (last visited August 13, 2015))
holds
no
relevance
to
the
severity
of
Plaintiff’s
aortic
insufficiency, particularly where neither Plaintiff nor Dr. de Gent
included
coronary
artery
disease
as
a
basis
for
Plaintiff’s
symptoms or disability (see Tr. 167 (Plaintiff’s Disability Report
listing allegedly disabling conditions); Tr. 269).
Additionally, Dr. de Gent supported his opinions with results
from
Plaintiff’s
echocardiogram
“medically
cardiac
(see
Tr.
acceptable
catheterization
269-78),
clinical
which
and
and
transesophageal
certainly
laboratory
constitute
diagnostic
techniques,” see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Under
these circumstances, the ALJ has failed to show that Dr. de Gent’s
opinions are “not supported by clinical evidence” or that such
opinions are “inconsistent with other substantial evidence,” Craig,
76 F.3d at 590.
12
Finally, the ALJ’s failure to adequately support her decision
to afford “little weight” to Dr. de Gent’s opinion (Tr. 21) does
not constitute harmless error.
sufficiently
weigh
a
medical
Although an ALJ’s failure to
source’s
opinion
can
amount
to
harmless error, such as where the plaintiff otherwise fails to show
how a proper weighing of the opinion would have altered his or her
RFC, see, e.g., Tanner v. Colvin, 602 F. App’x 95, 100-01 (4th Cir.
2015), here, Dr. de Gent’s opinion that Plaintiff suffers from
“significant shortness of breath on minimal exertion” (Tr. 270
(emphasis added)) calls into question the ALJ’s determination that
Plaintiff remains capable of performing even a modified range of
light work (Tr. 19-20).
See Social Security Ruling 83-10, Titles
II and XVI: Determining Capability to Do Other Work – the MedicalVocational Rules of Appendix 2 (“SSR 83-10") 1983 WL 31251, at *6
(1983) (“[T]he full range of light work requires standing or
walking, off and on, for a total of approximately 6 hours of an 8hour workday.”).5
Defendant argues in her brief that “medical records . . . in
the months leading up to Plaintiff’s appointment with Dr. [d]e
Gent” (Docket Entry 13 at 8 (citing Tr. 264-67 (appointment with
5
The doubt about Plaintiff’s ability to perform the prolonged standing and
walking required by light work deepens when considering the new evidence
Plaintiff submitted to the Appeals Council from treating orthopedist, Dr.
Whitfield. (See Tr. 288.) As argued by Plaintiff in his second assignment of
error (see Docket Entry 10 at 9-13), Dr. Whitfield stated that Plaintiff’s right
hip impairment prevented “him from standing and/or walking for 6 hours out of an
8 hour day.” (Id.)
13
primary care physician Dr. Tesfaye Fanta wherein Plaintiff denied
shortness of breath and revealing normal examination of heart and
lungs))) and “Plaintiff’s daily activities” (id. at 9 (citing Tr.
29, 33, 38, 40, 46-47 (detailing Plaintiff’s ability to assist his
elderly parents and perform certain small jobs))) “support the
weight given [by the ALJ] to Dr. [d]e Gent’s letter” (id. at 8).
However, the ALJ in this case did not cite to any such evidence in
support of her decision to assign Dr. de Gent’s opinions “little
weight” (Tr. 21), and the Court should not consider such post-hoc
rationalizations for the ALJ’s decision-making.
Massanari,
249
F.3d
840,
847
(9th
Cir.
reviewing court cannot affirm decision on
not
himself
rely);
Alexander
v.
2001)
See Pinto v.
(holding
that
ground on which ALJ did
Colvin,
Civil
Action
No.
9:14–2194–MGL–BM, 2015 WL 2399846, at *6 (D.S.C. May 19, 2015)
(unpublished) (rejecting Commissioner’s argument as “only a post
hoc rationalization for upholding the decision, since that is not
actually what the ALJ did”).
In sum, the ALJ’s decision to afford Dr. de Gent’s opinions
“little weight” (Tr. 21) constitutes reversible error.
2.
New Evidence
Plaintiff maintains in his remaining assignment of error that
new opinion evidence from orthopedist Dr. Whitfield, “incorporated
into the administrative record by the Appeals Council, requires
remand . . . under the Fourth Circuit Court of Appeals[’s] decision
14
[in] Meyer[]” (Docket Entry 10 at 9; see also Tr. 288 (new
evidence)).
Upon remand, the ALJ must not only reassess Dr. de
Gent’s opinions, but also evaluate Dr. Whitfield’s opinions, as the
Appeals Council has already incorporated Dr. Whitfield’s evidence
into the record.
Accordingly, the Court should decline to address
the merits of Plaintiff’s second assignment of error.
III.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings that properly address the opinions of
Drs.
de
Gent
and
Whitfield
§§ 404.1527(c), 416.927(c).
in
accordance
with
20
C.F.R.
As a result, Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 12) should be denied and
Plaintiff’s Motion for Judgment Reversing the Decision of the
Commissioner of Social Security (Docket Entry 9) should be granted
in part (i.e., to the extent it requests remand).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 14, 2015
15
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