MARTIN v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/13/2015; that the Commissioners decisionfinding 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. Rodosky, Lundeen, and Kaffen, and counselor Coburn (as endorsed by Dr. McFadden), in accordance with 20 C.F.R. §§ 404.1527(c), 416.927(c). As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) should be denied and Plaintiff's Motion for Judgment on the Administrative Record and Pleadings Pursuant to Fed. R. Civ. P. 12(c) (Docket Entry 9 ) should be granted in part (i.e., to the extent it requests remand). (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TODD ALLEN MARTIN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:14CV516
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Todd Allen Martin, 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 Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”).
(Docket Entry 1.)
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).
Court
should
remand
this
For the reasons that follow, the
matter
for
further
administrative
proceedings.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on April 7, 2010,
alleging a disability onset date of January 1, 2005.
168-71.)
(Tr. 164-67,
Upon denial of those applications initially (Tr. 93-94,
97-102) and on reconsideration (Tr. 95-96, 106-19), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 120-21).
Plaintiff, his attorney, and a vocational
expert (“VE”) attended the hearing (Tr. 35-72), at which Plaintiff
amended his alleged onset date to August 28, 2009, the day after an
ALJ’s unfavorable decision on Plaintiff’s prior claim for benefits
due to res judicata (see Tr. 42, 73-88).
By decision dated January
23, 2013, the ALJ determined that Plaintiff did not qualify as
disabled under the Act.
(Tr. 19-34.)
On March 26, 2014, the
Appeals Council denied Plaintiff’s request for review (Tr. 4-8),
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 June 30, 2010.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 28, 2009, the amended alleged onset
date.
3.
Since August 28, 2009, [Plaintiff] has the following
“severe” physical and mental impairments: status post
October 2004 traumatic injury right (non-dominant) upper
extremity, a history of recurrent rotator cuff tears and
AC joint impingement right shoulder, status post multiple
surgeries right shoulder, June 2010, May 2008, May 2007,
September 2006, and October 2005; complex regional pain
syndrome (also known as reflex sympathetic dystrophy);
depressive disorder, not otherwise specified; adjustment
disorder with anxiety and depressed mood; and borderline
intellectual functioning.
. . . .
2
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.
. . . [S]ince August 28, 2009, [Plaintiff] has
possessed the residual functional capacity to perform
less than [a] full range of “light work[]” . . . except
that [Plaintiff] can: occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; never
climb ropes, ladders, or scaffolds; occasionally use nondominant right arm for reaching, handling, fingering, and
feeling; must avoid exposure to workplace hazards, such
as dangerous moving machinery and unprotected heights;
must avoid exposure to temperature extremes, so no
exposure to temperatures of 80 degrees or more and 60
degrees or less; must avoid exposure to high humidity and
wetness; understand, remember, and carry out simple,
routine, repetitive instructions; make only simple work
related decisions; deal with only occasional changes in
work processes and environment; cannot maintain very
strict production or performance quotas, in that the pace
of work may need to vary over the course of the workday
or workweek, albeit that all assigned work is completed,
so no strict time requirements, no fast pace work, and no
assembly-line type work; and may have a ten percent (10%)
reduction in overall production from that of the average
employee.
. . . .
6.
[Plaintiff] is unable to perform his 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 August 28, 2009, through the
date of this decision.
3
(Tr. 25-34 (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
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
4
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
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.
5
(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
‘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
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).
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).
6
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
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
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
“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.
7
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 failed to develop the record by not “order[ing] an
updated IQ evaluation and making no attempt to obtain Plaintiff’s
school
records”
(Docket
Entry
9-1
at
11
(citing
20
C.F.R.
§§ 404.1512(d), (e), 416.912(d), (e)));
(2) the ALJ erred by “failing to give controlling . . . weight
. . . to the physical limitations opined by treating physician Dr.
Rodosky”
and
“the
mental
limitations
opined
by
[t]reating
[c]ounselor Coburn and supervising psychologist Dr. McFadden,” and
“great weight” to “independent medical examiners Dr. Lundeen and
Dr. Kaffen” (id. at 12, 15 (citing 20 C.F.R. §§ 404.1527(c),
416.927(c)));
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.”).
8
(3) the ALJ erred in evaluating Plaintiff’s credibility by
“failing
to
medications,
discuss
the
aggravating
reason
[]
factors of
Plaintiff
was
Plaintiff’s
not
taking
symptoms, and
[s]tate agency non-examining physician Dr. Zwissler’s opinion that
[]
Plaintiff
was
credible”
(id.
at
17
(citing
20
C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3))); and
(4) the ALJ erred by relying upon VE testimony given “in
response to an incomplete hypothetical question” and by “failing to
identify
and
reconcile
the
discrepancies
between
the
[VE’s]
testimony and the [Dictionary of Occupational Titles (“DOT”)] and
[Selected Characteristics of Occupations (“SCO”)]” (id. at 19).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 13 at 4-22.)
ALJ Duty to Develop the Record
In Plaintiff’s first assignment of error, he faults the ALJ
for failing to fully develop the record with respect to Plaintiff’s
borderline intellectual functioning.
More
specifically,
consultative
Plaintiff
psychological
(Docket Entry 9-1 at 11-12.)
maintains
examiner
that,
David
in
R.
light
of
Bousquet’s
invalidation of Plaintiff’s verbal and full scale IQ scores of 61
and 67, respectively, on the Wechsler Adult Intelligence Scale,
Fourth Edition (“WAIS-IV”) administered on May 26, 2010, “the ALJ
should have ordered an updated IQ evaluation in order to obtain a
valid measure of [] Plaintiff’s cognitive functioning.”
9
(Id.
(citing Tr. 350; 20 C.F.R. §§ 404.1512(e), 416.912(e)).)
Further,
Plaintiff disputes the ALJ’s finding “that [] Plaintiff did not
meet the threshold requirement of Listing 12.05” because Plaintiff
had not “evidenced significantly sub-average general intellectual
functioning
[and]
deficits
in
adaptive
functioning
manifested during the developmental period.”
Tr. 30).)5
have
initially
(Id. at 12 (citing
In that regard, Plaintiff asserts that the ALJ should
requested
Plaintiff’s
school
records
and
given
further
consideration to the fact that Plaintiff attended classes for the
“developmentally disabled.”
(Id.)
Finally, Plaintiff challenges
the ALJ’s reliance on the VE’s testimony characterizing Plaintiff’s
prior job as a cemetery laborer as skilled work comparable to that
of a “garden worker” (DOT 406.684-010).
(Id.)
Because the VE
conceded that the cemetery laborer job could also be classified as
“unskilled general laborer” (Tr. 69), Plaintiff argues that “the
ALJ’s reliance on Plaintiff’s ability to perform skilled work as
evidence that his intellectual deficits are not as serious as they
have
been
reported
is
flawed”
(Docket
Entry
9-1
at
12).
Plaintiff’s arguments lack merit.
The ALJ’s duty to further develop the record arises when an
inconsistency or conflict in the evidence requires resolution or
when insufficient evidence exists to assess an impairment.
See 20
C.F.R. §§ 404.1519a(b), 416.919a(b); Foster v. Halter, 279 F.3d
5
Notably, Plaintiff does not argue that his borderline intellectual functioning
meets or equals Listing 12.05C. (See Docket Entry 9-1 at 11-12.)
10
348, 355-56 (6th Cir. 2001).
“Although the ALJ has a duty to
explore all relevant facts and inquire into the issues necessary
for adequate development of the record, Cook v. Heckler, 783 F.2d
1168, 1173 (4th Cir. 1986), [the ALJ] is not required to function
as the claimant’s substitute counsel[.]”
Bell v. Chater, No.
95–1089, 57 F.3d 1065 (table), 1995 WL 347142, at *4 (4th Cir. Jun.
9, 1995) (unpublished)
(internal quotation marks omitted) (citing
Clark v. Shalala, 28 F.3d 828, 830–31 (8th Cir. 1994)).
Listing 12.05 provides in relevant part:
12.05 Mental retardation: Mental retardation refers to
significantly subaverage general intellectual functioning
with
deficits
in
adaptive
functioning
initially
manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment
before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function . . . .
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.05 (emphasis added).6
Although Listing 12.05 “does not expressly define ‘deficits in
adaptive functioning’ . . . ‘[a]daptive activities' are described
6
Effective September 3, 2013, the Social Security Administration replaced the
term “mental retardation” with “intellectual disability” in its Listing of
Impairments. See Change in Terminology: “Mental Retardation” to “Intellectual
Disability”, 78 Fed. Reg. 46499–01 (Aug. 1, 2013). Because this case commenced
prior to the change and the ALJ utilized the old terminology, this Recommendation
will use the term “mental retardation.”
11
elsewhere in the [Mental Disorders] Listing . . . as ‘cleaning,
shopping, cooking, taking public transportation, paying bills,
maintaining a residence, caring appropriately for your grooming and
hygiene,
using
office.’”
telephones
and
directories,
and
using
a
post
Blancas v. Astrue, 690 F. Supp. 2d 464, 476 (W.D. Tex.
2010) (quoting 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.05 &
12.00(C)(1)); accord Hager v. Astrue, No. 2:09CV1357, 2011 WL
1299509, at *2 (S.D.W. Va. Mar. 31, 2011) (unpublished).7
Here, the ALJ did not specifically discuss Plaintiff’s IQ
scores
(or
examiner
Bousquet’s
invalidation
of
such
scores),
because the ALJ found that Plaintiff did not demonstrate “such
significant
subaverage
general
intellectual
functioning
and
deficits in adaptive functioning as contemplated by threshold
language
of
[L]isting
12.05
.
.
.
[to]
warrant[]
further
consideration of the provisions contained under Listings 12.05A, B,
C, or D.”
(Tr. 31.)
In support of that finding, the ALJ noted
that Plaintiff was “able to do simple reading and writing, do
simple
math
calculations,”
and
“maintain[]
friendships
socialize[] with friends at least once or twice a week.”
and
(Tr. 30.)
Moreover, the ALJ observed that Plaintiff “lived by himself from
age 18 (1981) to 2008, when he moved in with [his] father due only
7
Similarly, a highly regarded treatise defines “adaptive functioning” as an
individual’s skills with respect to “communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, and safety.” Diagnostic & Statistical
Manual of Mental Disorders 41 (4th ed. text rev. 2007).
12
to financial need[,] . . . performed ‘skilled’ (SVP 5) work at
substantial gainful activity level for years before his physical
injury ceased such employment[,] . . . cook[ed], [did] laundry,
shop[ped], [took] care of money, [] play[ed] computer games[,]
[and,] in the past, . . . traveled extensively, sometimes by
himself.”
(Id.)
The ALJ also noted that Plaintiff had a high
school education (see Tr. 32), although the ALJ did not discuss the
fact that Plaintiff had attended special education classes (see Tr.
25-34).
Under comparable factual circumstances, the Fourth Circuit has
upheld an ALJ’s determination that the claimant did not demonstrate
sufficient deficits in adaptive functioning prior to age 22.
In
Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012), the claimant
lacked such deficits where she remained able to shop, pay bills,
make change, take care of three small grandchildren, perform
household chores, cook, attend school to obtain a GED, and do
puzzles.8
Accordingly, substantial evidence supports the ALJ’s
finding that Plaintiff did not demonstrate sufficient deficits in
adaptive functioning before age 22 to warrant consideration of
Plaintiff’s IQ scores under Listing 12.05C, and the ALJ thus did
8
Although the Fourth Circuit found these characteristics sufficient to support
a finding of an absence of deficits in adaptive functioning, it did not intimate
that those (or comparable) capabilities constituted the minimum that would
suffice to support such a finding.
See Hancock, 667 F.3d at 475-75 & n.3.
Hancock thus provides a valuable comparison standard for assessing an ALJ’s
findings regarding the adaptive functioning requirement, but does not identify
an outer boundary in this context.
13
not have a duty to further develop the record by ordering new IQ
tests.
Plaintiff asserts that the ALJ erred by “failing to request
Plaintiff’s school records.”
(Docket Entry 9-1 at 12.)
However,
the ALJ asked Plaintiff’s counsel at the hearing if he had been
given “an opportunity to review the record,” to which Plaintiff’s
counsel answered, “I have, Your Honor.”
(Tr. 38.)
The ALJ then
asked: “Any objection to any exhibits, sir?” (id.); Plaintiff’s
counsel responded: “No objections, Your Honor” (id.).
At the
conclusion of the hearing, Plaintiff’s counsel neither asked the
ALJ to hold the record open so that counsel could obtain the school
records nor requested the ALJ to obtain the records himself.
(Tr.
71-72.) Having failed to raise the issue of missing school records
at the hearing, Plaintiff cannot wait until after the ALJ issues
his decision to challenge the ALJ’s development of Plaintiff’s
academic record.
See Maes v. Astrue, 522 F.3d 1093, 1097 (10th
Cir. 2008) (holding duty to develop record “does not permit a
claimant, through counsel, to rest on the record — indeed, to
exhort the ALJ that the case is ready for decision — and later
fault the ALJ for not performing a more exhaustive investigation”);
Gatling v. Astrue, Case No. 2:211–cv–0021–FL, 2012 WL 4359435, at
*7 (E.D.N.C. June 28, 2012) (unpublished) (rejecting argument that
ALJ failed to develop record where claimant’s counsel neither
advised ALJ that record lacked any evidence nor requested ALJ’s
14
assistance
in
procuring
additional
materials).
Moreover,
“[Plaintiff’s] attorney does not identify what the missing [school
records] would have shown; rather, []he merely speculates that
having the evidence might have produced a different result.”
Scarberry v. Chater, No. 94-2000, 52 F.3d 322 (table), 1995 WL
238558, at *4 (4th Cir. Apr. 25, 1995) (unpublished) (internal
quotation marks omitted).
Finally, Plaintiff disputes the ALJ’s reliance, in finding
insufficient
adaptive
functioning
deficits,
on
the
VE’s
categorization of Plaintiff’s cemetery laborer job as skilled work.
(Docket
Entry
9-1
at
12.)
According
to
Plaintiff,
the
VE
“[c]learly . . . misidentified Plaintiff’s past relevant work” by
citing DOT job number 406.684-010, which reflects a Specific
Vocational Preparation (“SVP”) of 5 (indicating 6 months to one
year needed to learn job) and “describ[es] the tasks of a garden
worker.”
(Id.)
Plaintiff further asserts that the VE “conceded
that Plaintiff’s job could be classified as an unskilled general
laborer.”
(Id. (citing Tr. 69).)
Plaintiff’s arguments on these points fail for two reasons.
First, DOT job number 406.684-010 bears the title “Cemetery Worker”
and alternative title “Gravedigger.”
673339 (G.P.O. 4th ed., rev. 1991).
DOT No. 406.684-010, 1991 WL
The job duties described
include, inter alia, digging graves to a specified depth using a
pick and shovel or backhoe, mowing grass, pruning shrubs, trimming
15
trees, and removing leaves and other debris from graves.
Id.
Plaintiff does not explain why the duties described by the DOT
position
“Cemetery
Worker”
do
not
adequately
responsibilities of Plaintiff’s prior work.
encompass
the
(Docket Entry 9-1 at
12; see also Tr. 55 (reflecting Plaintiff’s testimony that he dug
graves using a jack hammer and “other stuff,” took care of lots in
the summers, and blew leaves in the fall).)
concede
that
Plaintiff’s
prior
“unskilled general laborer.”
work
Second, the VE did not
could
be
(See Tr. 69-70.)
categorized
as
Rather, the VE,
when asked by Plaintiff’s counsel, merely acknowledged that another
VE, in an earlier hearing on Plaintiff’s first claim for benefits,
might have classified Plaintiff’s prior work as “unskilled general
laborer,” but expressed no opinion on whether he agreed with that
classification and did not alter his stated opinion that “Cemetery
Worker” constituted the correct match for Plaintiff’s prior work.
(Id.)
Under these circumstances, the ALJ did not err in relying,
in part, on Plaintiff’s performance of skilled work over a number
of years in finding insufficient deficits in adaptive functioning.
In sum, Plaintiff’s first assignment of error fails to warrant
relief.
2.
Evaluation of Medical Opinion Evidence
Next, Plaintiff argues that the ALJ erred by “failing to give
controlling weight . . . to the physical limitations opined by
treating physician Dr. [Mark W.] Rodosky” (Docket Entry 9-1 at 12)
16
and “to the mental limitations opined by [t]reating [c]ounselor
[William R.] Coburn[, M.A., L.P.C] and supervising psychologist Dr.
[John F.] McFadden.” (id. at 15).
Plaintiff additionally faults
the ALJ for not affording “great weight . . . to the physical
limitations opined by . . . independent medical examiners Dr.
[James] Lundeen[, Sr.] and Dr. [Sheldon] Kaffen.”
(Id. at 12.)
According to Plaintiff, these providers’ opinions hold consistency
both with their own treatment notes and with other medical evidence
of record and, thus, the ALJ erred by affording the opinions
“minimal” weight and by relying instead on the opinions of the
state agency physicians and consultative examiners.
17.)
(Id. at 13-
Plaintiff’s arguments regarding Dr. Rodosky’s opinion 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
17
each treatment relationship appreciably tempers the weight an ALJ
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).
Dr. Rodosky, an orthopedic surgeon, performed arthroscopic
rotator
cuff
repair
and
subacromial
decompression
with
acromioplasty on Plaintiff’s right shoulder on both May 20, 2008,
and June 22, 2010.
(See Tr. 391-97.)
In between these two
procedures, Dr. Rodosky examined Plaintiff on February 9, 2009, and
opined that Plaintiff’s right shoulder had reached “maximum medical
improvement,” and warranted restriction to “permanent sedentary
duty, 1-pound lifting to waist level, no use of the arm above waist
level, and no repetitive use of the arm.”
(Tr. 380.)
In discussing Dr. Rodosky’s opinion, the ALJ noted that he did
“not find [Dr. Rodosky’s] assessment/opinion to be well-supported
by the contemporaneous ongoing medical treatment notes and medical
18
reports
of
treating
contemporaneous
and
medically
evaluating
acceptable
physicians
clinical
and
and
the
other
laboratory
diagnostic techniques in the hearing record” and did “not find said
assessment/opinion to be inconsistent [sic] with other substantial
evidence in the hearing record.”
(Tr. 27.)9
Later, the ALJ stated
that, “[t]o the extent that findings indicate that [Plaintiff] is
limited to performing sedentary work involving no significant use
of his left upper extremity and/or his lower extremities; the [ALJ]
grants minimal weight to the opinions of physicians, the treating
orthopedic
surgeon
[Dr.
Rodosky],
and
the
treating
sports
medicine/rehabilitative specialist . . . .” (Tr. 31-32 (citing Tr.
314 (Dr. Arsal Ahmad’s 2/11/09 opinion), 317 (Dr. Sheldon Kaffen’s
10/5/07 opinion), 319 (Dr. Gary Routson’s 4/17/07 opinion), 324
(Dr. Gregory Hill’s 6/20/06 opinion), 329 (Dr. Gregory Fisher’s
9/20/05 opinion), 338 (Dr. James Lundeen, Sr.’s 8/30/05 opinion),
380 & 407 (Dr. Rodosky’s 2/9/09 opinion), 507 (Dr. Rodosky’s
10/24/08 opinion), 565 (Dr. John Kuruc’s 9/8/09 opinion), 57610 (Dr.
Kuruc’s 6/5/07 opinion)).)
The ALJ also concluded that these
“opinions occurred prior to [Plaintiff’s] amended alleged onset
9
Within the context of the ALJ’s earlier statement that contemporaneous medical
records did not support Dr. Rododsky’s opinion (see Tr. 27), the ALJ’s use of the
word “inconsistent” instead of “consistent” appears to constitute a typographical
error.
10
Although the ALJ cited to “Exhibit 25F, pg 34” (Tr. 32 (emphasis added)),
Exhibit 25 contains only 4 pages (see Tr. 594-97). The ALJ apparently intended
to cite to Exhibit 24F, page 34, which contains Dr. Kuruc’s June 5, 2007 opinion.
(See Tr. 576.)
19
date, as the evidence of record has established that [Plaintiff’s]
level of functioning has improved since then.”
(Tr. 32.)
The ALJ’s assessment of the treating orthopedic surgeon’s
opinion falls far short of the regulatory requirements.
the
ALJ
concluded
that
“the
contemporaneous
Although
ongoing
medical
treatment notes” and “contemporaneous medically acceptable clinical
and laboratory diagnostic techniques” did not support Dr. Rodosky’s
opinions
(Tr.
27),
the
ALJ
failed
to
provide
any
specifics
regarding such allegedly inconsistent evidence in the record (see
Tr. 26-32).
An ALJ does not fulfill his duty to evaluate treating
source opinions by reciting boilerplate standards without any
accompanying factual and evidentiary support.
See Vann v. Colvin,
No. 1:14–cv–00089–MOC, 2015 WL 356951, at *5 (W.D.N.C. Jan. 27,
2015)
(unpublished)
(remanding
case
where
ALJ
merely
cited
boilerplate treating source rule and did “not specifically cite
which clinical findings and diagnostic testing he [found] to be
inconsistent with [the treating source’s] opinion on lifting and
carrying” and noting that “[i]t [was] not obvious to this court,
upon
review,
what
evidence
the
ALJ
[found]
inconsistent,
particularly since the ALJ’s summary of medical evidence indicates
that Plaintiff does, indeed, have a history of pain, reduced grip
strength, and numbness in her left arm, which would affect her
ability to lift and carry heavier objects”); see generally Social
Security Ruling 96–2p, Titles II and XVI: Giving Controlling Weight
20
to Treating Source Medical Opinions, 1996 WL 374188, at *5 (July 2,
1996) (requiring that an ALJ’s decision “contain specific reasons
for the weight given to the treating source’s medical opinion,
supported by the evidence in the case record” (emphasis added)).
Moreover, judicial review does not require the Court to comb
the ALJ’s recitation of a claimant’s treatment history to piece
together substantial evidence that conflicts with the treating
source’s opinion.
See Cira v. Colvin, 67 F. Supp. 3d 1206, 1210
(D. Colo. 2014) (ordering remand and observing that “court is
neither required — nor, indeed, empowered — to parse through the
record to find specific support for the ALJ’s decision”); 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)).
As
described
above,
the
ALJ
later
lumped
Dr.
Rodosky’s
February 9, 2009 opinion with nine other opinions from treating and
examining sources, including an earlier opinion from Dr. Rodosky,
and then dismissed all of these opinions, en masse, “[t]o the
extent” such opinions limit Plaintiff to “sedentary work involving
no significant use of his left upper extremity and/or his lower
extremities”
and
because
such
opinions
21
pre-dated
the
amended
alleged onset date.
(Tr. 31-32 (emphasis added).)
The former
basis for discounting Dr. Rodosky’s opinion does not hold true, as
Dr. Rodosky addressed Plaintiff’s right arm (Tr. 380) not “his left
upper
extremity
and/or
his
lower
extremities”
(Tr.
31-32).
Further, the ALJ’s statement that Dr. Rodosky offered the opinion
at issue approximately six and a half months prior to Plaintiff’s
amended alleged onset date does not, under the circumstances of
this case, provide a sufficient basis to reject Dr. Rodosky’s
opinion.
Although Plaintiff’s right shoulder symptoms may arguably have
shown some temporary improvement after Dr. Rodosky offered the
opinion
in
consultative
question
(see,
examination
by
e.g.,
Dr.
Tr.
299-306
William
D.
(July
22,
Padamadan
2009
finding
Plaintiff’s right shoulder range of motion moderately improved)),
by May, 2010, an MRI arthrogram demonstrated a “near complete”
recurrent rotator cuff tear which Dr. Rodosky opined would “require
a takedown of the complete portion and extensive debridement, and
re-repair” (Tr. 377). Dr. Rodosky performed the repair on June 22,
2010 (see Tr. 391-93), and did not offer a subsequent, less
restrictive
opinion
(see
Tr.
374-421,
473-74).
Under
these
circumstances, the ALJ’s discounting of Dr. Rodosky’s opinion based
on the passage of time cannot stand.
See Cotton v. Colvin, No.
5:14–CV–00425–FL, 2015 WL 5725518, at *7 (E.D.N.C. Aug. 12, 2015)
(unpublished) (holding that, “[w]here evidence predating the onset
22
of disability is relevant to an issue in the case, the ALJ should
consider that evidence in making a determination on the issue,” and
remanding case for ALJ’s failure to “reasonably articulate[]”
grounds for discounting physician’s opinion predating onset date by
over one year (emphasis added)); see also Peters v. Astrue, No.
6:10–cv–00941–RBH, 2011 WL 3876921, at *5 (D.S.C. Sept. 1, 2011)
(unpublished) (observing that, “if [a physician’s] restrictions
[that predate the onset date] . . . are permanent, they continue
into and encompass the relevant time period,” and finding error in
ALJ’s failure to consider such restrictions).
Finally, the ALJ’s failure to properly analyze Dr. Rodosky’s
opinion does not constitute harmless error.
Although an ALJ’s
failure to sufficiently evaluate a medical 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. Rodosky’s opinion restricting
Plaintiff to no use of the right arm above the waist (see Tr. 380
(emphasis added)) calls into question the ALJ’s determination that
Plaintiff remained capable of occasional reaching with the right
arm (Tr. 26). Moreover, the VE testified that, if the hypothetical
question relied on by the ALJ changed to preclude all reaching with
the right arm, the jobs cited by the VE “would not be available.”
(Tr. 68.)
Further, Dr. Rodosky’s right arm limitation above the
23
waist harmonizes with the opinions of multiple other treating,
examining, and consultative sources of record (see Tr. 335 (opinion
of Dr. Lundeen that reaching with right arm “very limited”), 426 &
472 (opinion of state agency physician, Dr. Walter Holbrook,
affirmed
by
reconsideration
state
agency
physician,
Dr.
Eli
Perencevich, restricting all overhead reaching with right arm), 565
(opinion of Dr. Kuruc placing “marked” limits on reaching with
right arm and noting Plaintiff’s inability “to raise [his] right
arm above 60 [degrees] or direct it outward in front of him”)),
including, in particular, the opinion of consultative examiner, Dr.
William Padamadan, given “great” weight by the ALJ (see Tr. 32; see
also Tr. 301 (Dr. Padamadan’s opinion that Plaintiff “may have
difficulty
with
using
the
non-dominant
right
upper
extremity
especially for overhead activities”)).
In sum, the ALJ’s failure to adequately explain or support his
decision to afford Dr. Rodosky’s opinions “minimal” weight (Tr. 31)
constitutes
reversible
error.
Reassessment
of
Dr.
Rodosky’s
opinion will necessitate reconsideration of the opinions of Drs.
Lundeen and Kaffen, which also address physical limitations faced
by Plaintiff as a result of his right arm impairment.
Further,
the
ALJ
limited
her
consideration
of
counselor
Coburn’s opinion based on the conclusion that counselor Coburn
constituted an “other source” under the regulations.
(citing 20 C.F.R. § 404.1513(d)).)
24
(Tr. 28
The ALJ should reassess that
conclusion in light of the fact that Dr. McFadden, a supervising
psychologist, also signed off on counselor Coburn’s restrictions
(Tr. 523, 527).
See generally Taylor v. Commissioner of Soc. Sec.
Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (holding that nurse
practitioner could qualify as “acceptable medical source” where she
worked under physician’s close supervision such that she acted as
physician’s agent).
Finally,
Rodosky,
because
Lundeen,
and
re-evaluation
Kaffen,
as
of
well
the
as
opinions
of
the
of
Drs.
opinion
of
counselor Coburn (as endorsed by Dr. McFadden) may result in reevaluation of Plaintiff’s credibility, as well as a different RFC
determination and corresponding hypothetical question, the Court
should decline at this time to address Plaintiff’s assignments of
error regarding those matters.11
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
11
Plaintiff argues that “the ALJ erred in failing to identify and reconcile the
discrepancies between the VE’s testimony and the [DOT] and the [SCO] pursuant to
[Social Security Ruling] 00-4p.” (Docket Entry 9-1 at 20.)
In particular,
Plaintiff asserts that, according to these treatises, the job of school crossing
guard, cited by the VE as within Plaintiff’s RFC, requires frequent reaching and
exposure to temperatures lower than 60 degrees and warmer than 80 degrees, both
of which exceed the ALJ’s RFC. (Id. at 20-21.) Similarly, Plaintiff contends
that the other position offered by the VE, school bus monitor, also would require
him to exit the bus and experience the precluded temperature extremes. (Id. at
21.)
These arguments appear to have some merit.
If, upon remand, the ALJ
ultimately adopts an RFC similar to the one previously adopted, the ALJ should
carefully assess whether the jobs, if any, offered by the VE fully accommodate
all of the restrictions, exertional and non-exertional, included in the RFC.
25
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings that properly address the opinions of
Drs.
Rodosky,
endorsed
by
Lundeen,
Dr.
and
Kaffen,
McFadden),
§§ 404.1527(c), 416.927(c).
in
and
counselor
accordance
with
Coburn
20
(as
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 on the Administrative Record and
Pleadings Pursuant to Fed. R. Civ. P. 12(c) (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
October 13, 2015
26
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