PATTERSON v. BERRYHILL
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/28/2018, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 )be granted, and that this action be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GARY PATTERSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
)
)
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)
)
)
)
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)
1:17CV567
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Gary Patterson, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 7 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Brief);
Docket Entry 13 (Defendant’s Memorandum)).
For the reasons that
follow, the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff initially applied for DIB in January 2008, alleging
an onset date of February 16, 2007, which he later amended to July
6, 2006.
(See Tr. 65.)
After administrative denials, and a de
novo hearing before an Administrative Law Judge (“ALJ”) which
Plaintiff, his attorney and a vocational expert (“VE”) attended
(see id.), the ALJ determined that Plaintiff did not meet the
criteria for DIB between July 6, 2006, and March 22, 2010, the date
of
the
ALJ’s
decision
(Tr.
subsequently denied review.
63-76).
The
Appeals
Council
(Tr. 80-84.)
Plaintiff filed a second application for DIB in April 2013,
alleging disability as of March 23, 2010, the day after the prior
ALJ’s unfavorable decision due to the operation of res judicata
(Tr. 252-53), and an application for Supplemental Security Income
(“SSI”) (see Tr. 112 (reflecting that Plaintiff filed claim for SSI
in April 2013)).1
The Disability Determination Services (“DDS”)
denied both of Plaintiff’s applications initially (Tr. 85-97, 98110, 111, 112, 167-74, 175-82.)
On reconsideration, the DDS again
denied Plaintiff’s DIB claim (Tr. 113-34, 163, 192-99), but granted
his SSI claim as of September 24, 2013, the day Plaintiff suffered
a stroke (Tr. 135-62, 164, 200).
Plaintiff thereafter requested a
hearing de novo before an ALJ on the DIB claim only (Tr. 201),
which Plaintiff, his attorney, and a VE attended (Tr. 40-62).
The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 17-34.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 14-16, 350-52), thereby
making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
1
The record does not contain Plaintiff’s application for SSI.
2
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] last met the insured status requirements
of the [] Act on June 30, 2012.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
March 23, 2010 through his date last insured of June 30,
2012.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: degenerative disc disease
with disc bulging, depression, and anxiety.
. . .
4.
Through the date last inured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [T]hrough the date last insured of June 30,
2012, [Plaintiff] had the residual functional capacity to
perform light exertional work . . . with the following
exceptions. He could occasionally climb ladders, ropes
and scaffolds.
He could occasionally climb ramps or
stairs, balance, stoop, crouch, kneel and crawl.
He
should avoid concentrated exposure to unprotected heights
and was limited to simple, routine tasks.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform his past relevant work.
was
. . .
10. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
3
11. [Plaintiff] was not under a disability, as defined
in the [] Act, at any time from March 23, 2010, the
alleged onset date, through June 30, 2012, the date last
insured.
(Tr.
23-33
(bold
font
and
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).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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 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, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
4
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
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 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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
5
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
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.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the claimant at any of
2
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).
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
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 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See 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
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained 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
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 567.5
B.
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ committed plain error by finding that the
medical evidence does not show that [Plaintiff] suffers from a
spinal disorder characterized by nerve root compression” (Docket
Entry 11 at 12 (italics and single-spacing omitted));
2) “[t]he ALJ erred by failing to account for [Plaintiff’s]
need for a sit-stand option” (id. at 14 (italics and single-spacing
omitted));
3) “[t]he ALJ erred by failing to adequately assess Dr.
Hoeper’s opinion as a treating physician” (id. (italics and singlespacing omitted));
5
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
4) “[t]he ALJ erred by rejecting the opinion of Ms. Glogau, a
consulting
examiner”
(id.
at
18
(italics
and
single-spacing
omitted));
5) “[t]he ALJ failed to explain why [Plaintiff] can work
despite a moderate limitation in concentration, persistence, [or]
pace (CPP) . . . [and] the hypothetical question failed to account
for
this
limitation”
(id.
at
24
(italics
and
single-spacing
omitted)); and
6)
“[t]he
ALJ’s
hypothetical
failed
to
account
for
[Plaintiff’s] need for a cane” (Id. at 25 (italics and singlespacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 3-19.)
1. Listing 1.04A6
Plaintiff first contends that “[t]he ALJ committed plain error
by
finding
that
the
medical
evidence
d[id]
not
show
that
[Plaintiff] suffers from a spinal disorder characterized by nerve
root compression.”
(Docket Entry 11 at 12 (italics and single-
spacing omitted).)
In particular, Plaintiff asserts that “[a]t
least 19 times, the record said [Plaintiff] ha[d] compression of
the lumbar nerve(s)” (id. (citing Tr. 87, 100, 520, 550, 585, 621,
6
As the Commissioner argues, “[a]lthough Plaintiff does not specify that he is
challenging the ALJ’s findings with respect to sub[paragraph] A of [L]isting
1.04, [Plaintiff’s] focus on the word ‘compression’ suggests that this
sub[paragraph] is the crux of his challenge.” (Docket Entry 13 at 5 n.1; see
also Docket Entry 11 at 12-14.)
9
674, 700, 712, 726, 755, 767, 845, 857, 873, 887, 891, 905, 1004)),
but that “[n]ot once did the ALJ cite th[at] evidence” (id.).
According to Plaintiff, the ALJ’s failure to “use any form of the
word ‘compress’ or ‘compression’” in the decision “greatly tends to
show the unthinkable – that the ALJ intentionally and repeatedly
closed her eyes to evidence highly favorable to [Plaintiff].” (Id.
at 13.)
Plaintiff maintains that the ALJ’s error in this regard
qualifies as clearly erroneous, because that error “easily passes
the ‘dead fish’ test, applied in the [United States Court of
Appeals for the] Fourth Circuit and elsewhere.”
(Id. (quoting
Parts & Elec. Motors, Inc. V. Sterling Elec., Inc., 866 F.2d 228,
233 (7th Cir. 1988) (“To be clearly erroneous, a decision must
strike us as more than just maybe or probably wrong; it must . . .
strike
us
as
wrong
with
the
force
of
a
five-week
old,
unrefrigerated dead fish.”), and citing TFWS, Inc. v. Franchot, 572
F.3d 186, 194 (4th Cir. 2009)).)
“Under Step 3, the [Social Security Administration’s SEP]
regulation states that a claimant will be found disabled if he or
she has an impairment that ‘meets or equals one of [the] listings
in [A]ppendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the
duration requirement.’”
Radford v. Colvin, 734 F.3d 288, 293 (4th
Cir. 2013) (quoting 20 C.F.R. § 404.1520(a)(4)(iii)) (internal
bracketed numbers omitted).
“The listings set out at 20 CFR [P]t.
404, [S]ubpt. P, App[’x] 1, are descriptions of various physical
10
and
mental
illnesses
and
abnormalities,
most
categorized by the body system they affect.
of
which
are
Each impairment is
defined in terms of several specific medical signs, symptoms, or
laboratory test results.” Sullivan v. Zebley, 493 U.S. 521, 529-30
(1990) (internal footnote and parentheticals omitted).
“In order
to satisfy a listing and qualify for benefits, a person must meet
all of the medical criteria in a particular listing.” Bennett, 917
F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20 C.F.R.
§ 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment
that manifests only some of th[e] criteria [in a listing], no
matter how severely, does not qualify.”).
An ALJ must identify the relevant listed impairments and
compare them to a claimant’s symptoms only where “there is ample
evidence in
the
record
to
support
a determination
that
[the
claimant’s impairment] met or equalled [sic] one of the [ ]
impairments listed in Appendix 1 . . . .”
Cook v. Heckler, 783
F.2d 1168, 1172 (4th Cir. 1986) (emphasis added); see also Russell
v. Chater, No. 94–2371, 60 F.3d 824 (table), 1995 WL 417576, at *3
(4th Cir. July 7, 1995) (unpublished) (“Cook . . . does not
establish an inflexible rule requiring an exhaustive point-by-point
discussion [of listings] in all cases.”); Ollice v. Colvin, No.
1:15CV927,
2016
(unpublished)
WL
7046807,
(Peake,
M.J.)
at
*3
(“[A]n
(M.D.N.C.
ALJ
is
Dec.
not
2,
2016)
required
to
explicitly identify and discuss every possible listing; however, he
11
must
provide
sufficient
explanation
and
analysis
to
allow
meaningful judicial review of his step three determination where
the ‘medical record includes a fair amount of evidence’ that a
claimant’s impairment meets a disability listing.” (emphasis added)
(quoting Radford, 734 F.3d at 295)), recommendation adopted, slip
op. (M.D.N.C. Jan. 10, 2017) (Osteen, Jr., J.).
Listing 1.04A requires proof of a “[d]isorder[] of the spine
(e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal
stenosis,
osteoarthritis,
degenerative
disc
disease,
facet
arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord” and:
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine).
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.04A.
“Listing 1.04A
requires a claimant to show only what it requires him to show: that
each of the symptoms are present, and that the claimant has
suffered or can be expected to suffer from nerve root compression
continuously for at least 12 months.”
Radford, 734 F.3d at 294.
Here, the ALJ analyzed all three subparagraphs (e.g., A, B,
and C) of Listing 1.04 together in one paragraph:
The [ALJ] consulted [L]isting 1.04 disorders of the
spine. [Plaintiff’s] condition in his back does not meet
this [L]isting because there is not sufficient evidence
of nerve root compression, motor loss, sensory/reflex
12
loss, spinal arachnoiditis, or lumbar spinal stenosis
resulting in pseudoclaudication and inability to ambulate
effectively as defined by [20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § ]1.00(b)(2)(b). The holding in Radford[] was
fully considered in making this determination.
(Tr. 25 (emphasis added).)
The ALJ erred by finding that “there [wa]s not sufficient
evidence
of
nerve
root
compression”
(Tr.
25),
as
an
MRI
of
Plaintiff’s lumbar spine performed on March 24, 2010, showed a
“[s]mall left foraminal disc protrusion with associated annular
tear [which] create[d] only minimal foraminal stenosis” at L4-5,
and a “[l]eft central disc extrusion” at L5-S1 which “migrate[d]
caudally and create[d] significant mass effect on the descending
left S1 nerve root in the lateral recess” (Tr. 367).
Many of
Plaintiff’s physicians subsequently referred to that MRI as showing
evidence of nerve compression.
(See, e.g., Tr. 550, 674, 700.)
However, the ALJ’s error in that regard remains harmless under
the circumstances of this case. See generally Fisher v. Bowen, 869
F.3d 1055, 1057 (7th Cir. 1989) (“No principle of administrative
law or common sense requires us to remand a [Social Security] case
in quest of a perfect opinion [from an ALJ] unless there is reason
to believe that the remand might lead to a different result.”).
Here, Plaintiff has not even argued (much less shown) that he
suffered from “motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg
13
raising test (sitting and supine)” during the relevant period in
this case.
(See Docket Entry 11 at 12-14.)
As the record lacks
ample evidence that Plaintiff’s back impairment could have met or
medically equaled Listing 1.04A during the relevant period, the ALJ
did not commit prejudicial error by determining that the record did
not contain “sufficient evidence of nerve root compression” (Tr.
25).
See Williamson v. Colvin, No. 1:10CV547, 2014 WL 459850, at
*6 (M.D.N.C. Feb. 5, 2014) (unpublished) (finding that, although
ALJ erred by finding no evidence of nerve root compression and
stenosis, substantial evidence still supported ALJ’s determination
that the plaintiff did not meet or equal Listing 1.04A, where he
had
not
shown
many
of
the
other
criteria
of
that
Listing),
recommendation adopted, slip op. (M.D.N.C. Mar. 28, 2014) (Tilley,
S.J.).
2. Plaintiff’s Need for a Sit/Stand Option
In Plaintiff’s next issue on review, he alleges that the ALJ
erred by failing to incorporate the sit/stand option from the prior
ALJ’s decision into the RFC and dispositive hypothetical question
to the VE.
(See Docket Entry 11 at 14.)
According to Plaintiff,
“[i]t cannot reasonably be maintained that [Plaintiff’s] condition
improved after the date of the prior unfavorable decision” and,
thus, “the ALJ was required to incorporate into the RFC and
hypothetical question the same sit/stand option as required in the
14
prior decision – or explain why it should not be incorporated . . .
[but] did neither.”
(Id.)
That argument misses the mark.
The Fourth Circuit previously has addressed the manner in
which an ALJ treated a prior denial of the claimant’s application
for benefits.
See Albright, 174 F.3d at 474-78.
In that case, the
new ALJ did not analyze whether the claimant’s condition had
worsened since the prior ALJ’s decision, but rather simply adopted
the prior ALJ’s denial of benefits as res judicata based upon the
Social Security Administration’s (“SSA”) Acquiescence Ruling 942(4) (“AR 94-2(4)”).
adopt
findings
from
Id. at 474, 475.
prior
ALJ
AR 94-2(4) required ALJs to
decisions
produced new and material evidence.
Id.
unless
the
claimant
The Fourth Circuit found
the application of AR 94-2(4) to Albright’s claim for benefits
“imprudent,” id. at 477, and contrary to the SSA’s long-standing
“treatment of later-filed applications as separate claims,” id. at
476.
In response to Albright, the SSA issued Acquiescence Ruling
00-1(4), (Interpreting Lively v. Secretary of Health and Human
Services) – Effect of Prior Disability Findings on Adjudication of
a Subsequent Disability Claim – Titles II and XVI of the Social
Security Act, 2000 WL 43774 (Jan. 12, 2000) (“AR 00-1(4)”).
AR 00-
1(4) provides as follows:
When adjudicating a subsequent disability claim . . ., an
[ALJ] determining whether a claimant is disabled during
a previously unadjudicated period must consider . . . a
prior finding [of a claimant’s RFC or other finding
15
required at a step in the SEP] as evidence and give it
appropriate weight in light of all relevant facts and
circumstances.
In determining the weight to be given
such a prior finding, an [ALJ] will consider such factors
as: (1) whether the fact on which the prior finding was
based is subject to change with the passage of time, such
as a fact relating to the severity of a claimant’s
medical condition; (2) the likelihood of such a change,
considering the length of time that has elapsed between
the period previously adjudicated and the period being
adjudicated in the subsequent claim; and (3) the extent
that evidence not considered in the final decision on the
prior claim provides a basis for making a different
finding with respect to the period being adjudicated in
the subsequent claim.
AR 00-1(4), 2000 WL 43774, at *4 (emphasis added).
Here, the ALJ noted at the outset of her decision that, “[i]n
determining the weight to be given [to the prior ALJ’s] finding[s],
she ha[d] considered” factors required by AR 00-1(4).
(Tr. 22.)
The ALJ then further explained the weight she accorded to the prior
ALJ’s RFC as follows:
Pursuant to Albright, the [ALJ] gave great weight to the
[RFC] assessment contained in the prior ALJ decision, as
it was generally consistent with the diagnostic imaging
results and the observations of [Plaintiff’s] treatment
providers that [Plaintiff] did not always have an
antalgic gait. It is also consistent with [Plaintiff’s]
non-compliance with treatment recommendations. However,
less weight was given to the sit/stand option, as the
current record does not contain sufficient objective
evidence of problems standing or sitting, and this
limitation is inconsistent with [Plaintiff’s] refusal to
participate in treatments that could have alleviated his
pain.
(Tr. 29 (internal citation omitted) (emphasis added).)
The ALJ’s evaluation of the prior ALJ’s decision complies with
AR 00-1(4).
Contrary to Plaintiff’s allegations (see Docket Entry
16
11
at
14),
the
ALJ
did
expressly
explain
why
she
did
not
incorporate the prior ALJ’s sit/stand option into the RFC and
hypothetical question (see Tr. 29).
noted
that
“the
current
record
As emphasized above, the ALJ
d[id]
not
contain
sufficient
objective evidence of problems standing or sitting” (id. (emphasis
added)), thus considering “the extent that evidence not considered
in the final decision on the prior claim provide[d] a basis for
making a different finding,” AR 00-1(4), 2000 WL 43774, at *4.
Moreover, the ALJ’s discussion of Plaintiff’s treatment for
back pain dated after the prior ALJ’s decision on March 22, 2010
(see Tr. 27-28), supports her finding that the sit/stand option did
not
harmonize
with
Plaintiff’s
“refusal
to
participate
treatments that could have alleviated his pain” (Tr. 29).
example, the ALJ noted that:
•
In July 2010, Dr. Shahid Nimjee recommended that
Plaintiff undergo surgery to help alleviate his
back symptoms, but Plaintiff declined and the
neurological clinic discharged Plaintiff from its
care (see Tr. 27);
•
In October 2010, Dr. Bibhu Mohanty found Plaintiff
an excellent candidate for surgery but Plaintiff
still refused (see id.);
•
In December 2010, Plaintiff informed a physical
therapist that “he knew what exercises needed to be
done and that he would do them at home, and he was
discharged without any further recommendation for
additional therapy sessions” (Tr. 27-28);
•
In January 2011, “although Dr. Mohanty again
indicated that surgery might be the best option,
[Plaintiff] adamantly refused” (Tr. 28);
17
in
For
•
In February 2011, Plaintiff “declined both surgery
and injections” (id.);
•
In September 2011, Dr. Joel Goldberg noted that
Plaintiff “might benefit from chiropractic care or
other alternative therapies” but no indication
exists that Plaintiff pursued those options (id.);
•
In November 2011, Plaintiff “was again not taking
his medication as prescribed” and complained that
his medications made him foggy yet asked his doctor
to increase his Oxycodone (id.);
•
In January 2012, Dr. Megan Brooks “reported that
[Plaintiff] continued to refuse both surgery and
physical therapy” and that Plaintiff might not have
been taking his medications as prescribed (id.);
and
•
In June 2012, concerns remained about Plaintiff’s
compliance with treatment recommendations (id.).
As the ALJ’s analysis sufficiently complies with AR 00-1(4),
Plaintiff has not shown that the ALJ erred by omitting the prior
ALJ’s sit/stand option from the RFC and hypothetical question.
3. Medical Opinions of Dr. Edwin W. Hoeper
Next, Plaintiff contends that the ALJ erred by assigning no
weight to the opinions of Plaintiff’s treating psychiatrist, Dr.
Hoeper. (Docket Entry 11 at 14-18.) Plaintiff has not established
a basis for relief.
In this case, on March 6, 2016, Dr. Hoeper completed a Medical
Source Statement (“MSS”) (Tr. 1371-75), diagnosing Plaintiff with
major depression (see Tr. 1371), characterized by a flat affect,
depressed mood, and social isolation (see Tr. 1372).
Dr. Hoeper
opined that, as a result of that impairment, Plaintiff experienced
18
marked to extreme loss of ability in nearly all mental functional
areas, including handling detailed instructions, maintaining his
attention and concentration, making simple work-related decisions,
performing at a consistent pace (see Tr. 1373), interacting with
the public, handling instructions and criticism, getting along with
co-workers, and responding appropriately to changes (see Tr. 1374).
In addition, Dr. Hoeper opined that Plaintiff’s “impairments or
treatment would cause [him] to be absent from work[] . . . [m]ore
than 3 times a month.”
(Tr. 1372.)
Dr. Hoeper indicated that
Plaintiff’s “condition existed and persisted with the restrictions
as outlined in th[e] [MSS] at least since [March 23, 2010].”
(Tr.
1375.)
The ALJ assessed Dr. Hoeper’s opinions as follows:
The [ALJ] . . . places no weight in the opinions of [Dr.
Hoeper]. . . .
He did not even start treating
[Plaintiff] until two years after the date last insured.
Additionally, as of the opinion he had only treated her
[sic] for 21 weeks, which does not establish a
significant longitudinal relationship.
Further, the
opinion . . . does not contain objective evidence for the
limitations, and the objective treatment record does not
support such severe limitations.
(Tr. 31 (internal citations omitted).)
Plaintiff challenges the
ALJ’s rejection of Dr. Hoeper’s opinions on four grounds: 1) the
ALJ erred by dismissing Dr. Hoeper’s opinions outright “because
they post-dated the [date last insured (‘DLI’)] by two years”
(Docket Entry 11 at 15-16); 2) “the ALJ cited no evidence that the
period of treatment was insufficient to allow Dr. Hoeper the
19
deference accorded a treating physician” (id. at 16); 3) contrary
to the ALJ’s finding, “the MSS does cite objective evidence” (id.);
and 4) “the ALJ’s finding that the ‘objective treatment record does
not support such severe limitations’ is not only false but plainly
conclusory” (id. at 17).
None of those contentions carry the day.
a. Post-DLI Evidence
Plaintiff points to the ALJ’s failure to “discuss any of Dr.
Hoeper’s treatment notes in her summary of the evidence” and her
failure to “discuss Dr. Hoeper’s opinions in any meaningful sense”
(id. at 15) as “consistent with her view that Dr. Hoeper’s opinions
should not even be considered because they post-dated the DLI by
two years” (id. at 16).
According to Plaintiff, the ALJ erred by
“automatically barr[ing]” Dr. Hoeper’s MSS from consideration on
the basis of its timing.
(Id. (citing, inter alia, Woolridge v.
Secretary of Health & Human Servs., 816 F.2d 157, 160 (4th Cir.
1987)).)
The Fourth Circuit addressed the issue of an ALJ’s obligation
to consider medical evidence that post-dates a claimant’s DLI in
Bird v. Commissioner of Soc. Sec. Admin., 699 F.3d 337 (4th Cir.
2012).
In that case, the Fourth Circuit held “that post–DLI
medical evidence generally is admissible in [a Social Security]
disability determination in such instances in which that evidence
permits
an
condition.”
inference
of
linkage
with
the
claimant’s
pre–DLI
Bird, 699 F.3d at 341 (emphasis added) (citing Moore
20
v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)).
In Moore, the
Fourth Circuit found such linkage in medical evaluations postdating the claimant’s DLI that “reflect[ed] . . . a possible
earlier and progressive degeneration.”
Moore, 418 F.2d at 1226.
As an initial matter, Plaintiff’s own argument dispels his
assertion that the ALJ dismissed Dr. Hoeper’s MSS outright because
of its timing, as Plaintiff readily admits that the ALJ gave four
separate reasons for rejecting Dr. Hoeper’s opinions.
Entry 11 at 14-18.)
(See Docket
Moreover, the facts of this case materially
distinguish it from Bird because, unlike in Bird, Dr. Hoeper’s
opinions on the MSS do not “permit[] an inference of linkage with
the claimant’s pre–DLI condition.” Bird, 699 F.3d at 341 (emphasis
added).
Although Dr. Hoeper opined that Plaintiff’s restrictions
had persisted since Plaintiff’s alleged onset date of March 23,
2010 (see Tr. 1375), Dr. Hoeper did not even begin treating
Plaintiff until over four years later on June 12, 2014 (see Tr.
1365-69).
Furthermore, as the Commissioner argues (see Docket
Entry 13 at 11), in the interim between Plaintiff’s onset date and
the commencement of treatment with Dr. Hoeper, Plaintiff suffered
a debilitating stroke that resulted in Plaintiff qualifying for SSI
as of the date of his stroke, September 24, 2013 (see Tr. 135-62,
164,
200).
Because
Dr.
Hoeper
“never
observed
or
examined
Plaintiff before that stroke, . . . [he] ha[d] no insight into
Plaintiff’s pre-stroke mental functionality.”
21
(Docket Entry 13 at
11.) Thus, the ALJ did not err by rejecting Dr. Hoeper’s opinions,
in part, because of their post-DLI timing.
b. Length of Treatment Relationship
Plaintiff next contends that that “[t]he ALJ also erred by
rejecting Dr. Hoeper’s MSS on the ground that 21 weeks of treatment
did not
establish
a
‘significant
longitudinal relationship.’”
(Docket Entry 11 at 16 (quoting Tr. 31).)
The ALJ erred by finding
that, “as of the [date of the MSS, Dr. Hoeper] had only treated her
[sic]
for
21
weeks,
which
does
not
establish
a
significant
longitudinal relationship.” (Tr. 31 (emphasis added).) The record
contains four treatment notes from Dr. Hoeper spanning from June
12, 2014, to September 30, 2015 (see Tr. 1350-69), a period of over
15 months.7
However, because the ALJ’s other grounds for rejecting
Dr. Hoeper’s opinions remain sound, any such error by the ALJ
remains harmless here. See generally Fisher, 869 F.3d at 1057 (“No
principle of administrative law or common sense requires us to
remand a [Social Security] case in quest of a perfect opinion [from
an ALJ] unless there is reason to believe that the remand might
lead to a different result.”).
7
In response to the request on the MSS to provide the “[f]requency and length
of contact[,]” Dr. Hoeper handwrote “[illegible] [every] 21 WEEKS” (Tr. 1371),
which likely meant to convey the frequency of Plaintiff’s visits with Dr. Hoeper,
but might account for the ALJ’s mistaken finding that Plaintiff treated with Dr.
Hoeper for a total of only 21 weeks (see Tr. 31).
However, the ALJ also
acknowledged that Dr. Hoeper first treated Plaintiff in 2014 (see id. (reflecting
ALJ’s statement that Dr. Hoeper “did not even start treating [Plaintiff] until
two years after the date last insured”)) and, thus, the ALJ’s finding that Dr.
Hoeper only treated Plaintiff for 21 weeks qualifies as internally inconsistent
and irreconcilable with the record.
22
c. Objective Findings to Support Opinions
Plaintiff also faults the ALJ for finding that Dr. Hoeper’s
opinions lacked “‘objective evidence for the limitations.’” (Docket
Entry 11 at 16 (quoting Tr. 31).)
According to Plaintiff, Dr.
Hoeper did cite to objective evidence on the MSS (see id.), in the
form of “[p]sychiatric signs[,]” defined as “abnormalities of
behavior,
mood, thought,
memory,
orientation,
development,
or
perception . . . shown by observable facts that can be medically
described
and
evaluated”
(id.
at
17
(quoting
20
C.F.R.
§ 404.1528(b))).
Although Plaintiff does not identify the “[p]sychiatric signs”
Dr. Hoeper cited on the MSS (see id. at 16-17), Dr. Hoeper did
check various boxes on the pre-printed MSS indicating Plaintiff’s
“signs and symptoms” (see Tr. 1371).
However, as the Commissioner
argues (see Docket Entry 13 at 12), Dr. Hoeper did not attempt to
explain
how
any
objective
symptoms
he
may
have
observed
in
Plaintiff in 2014 and 2015, after Plaintiff’s stroke, supported
“extreme” limitations in multiple functional areas (defined as
“[c]omplete loss of ability in the named activity” (Tr. 1372))
dating back to March 23, 2010 (see Tr. 1371-75).
Moreover, the MSS
fails to clarify whether Dr. Hoeper objectively observed the
checked symptoms or merely recited Plaintiff’s subjective reports.
(See Tr. 1371.)
As such, the ALJ did not err by finding that the
23
MSS lacked objective evidence to support the extreme limitations.
(See Tr. 31.)
d. Consistency of Opinions with the Record
Plaintiff further challenges “the ALJ’s finding that ‘the
objective
treatment
record
does
such
severe
limitations’ [a]s not only false but plainly conclusory.”
(Docket
Entry 11 at 17 (citing Tr. 31).)
not
support
Plaintiff maintains, without
supporting citation, that “an ALJ can reject a treating physician’s
opinion only by citing ‘persuasive contradictory evidence[,]’” and
that the ALJ did “not even mention any conflicting or inconsistent
evidence” in rejecting Dr. Hoeper’s opinions.
(Id.)
As an initial matter, Plaintiff misrelies on the “persuasive
contradictory evidence” standard.
“treating
physician
rule”
no
(Id.)
longer
That phrasing of the
represents
the
governing
standard. See Stroup v. Apfel, No. 96-1722, 205 F.3d 1334 (table),
2000 WL 216620, at *5 (4th Cir. Feb. 24, 2000) (unpublished) (“The
1991 regulations supersede the ‘treating physician rule’ from our
prior case law.”); Shrewsbury v. Chater, No. 94-2235, 68 F.3d 461
(table), 1995 WL 592236, at *2 n.5 (4th Cir. Oct. 6, 1995)
(unpublished) (“As regulations supersede contrary precedent, the
cases cited by [the plaintiff] defining the scope of the ‘treating
physician rule’ decided prior to 20 C.F.R. § 416 and related
regulations are not controlling.” (internal citation omitted));
accord Brown v. Astrue, Civil Action No. CBD-10-1238, 2013 WL
24
937549, at *4 (D. Md. Mar. 8, 2013) (unpublished); Benton v.
Astrue, Civil Action No. 0:09-892-HFF-PJG, 2010 WL 3419272, at *1
(D.S.C. Aug. 30, 2010) (unpublished); Pittman v. Massanari, 141 F.
Supp. 2d 601, 608 (W.D.N.C. 2001); Ward v. Chater, 924 F. Supp. 53,
55-56 (W.D. Va. 1996).
Under the proper standard, the treating source rule does
generally require an ALJ to give controlling weight to the opinion
of a treating source regarding the nature and severity of a
claimant’s impairment. See 20 C.F.R. § 404.1527(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
hospitalizations.”).
consultative
examinations
or
brief
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 affords an opinion.
C.F.R. § 404.1527(c)(2)(ii).
See 20
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.
See 20 C.F.R. § 404.1527(c)(2)-(4). “[I]f a physician’s opinion is
25
not supported by clinical 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, although the ALJ did not specify the objective evidence
that failed to support Dr. Hoeper’s opinions in the same paragraph
in which she weighed those opinions (see Tr. 31), elsewhere in the
ALJ’s decision, she detailed findings in Plaintiff’s mental health
treatment that did not support Dr. Hoeper’s extreme limitations
(see Tr. 28-29).
For example, the ALJ noted:
•
Plaintiff reported symptoms of depression in June
2011, but declined any medication (Tr. 28);
•
Following Plaintiff’s hospitalization in September
2011 for depression and suicidal thoughts, he
“continued attending group therapy, and although he
was at times tearful with a depressed mood, he had
no further suicidal ideation, no hallucinations,
and no delusions . . . [and] was generally an
active participant in therapy” (id.);
•
“By October 2011, [Plaintiff] reported being less
tearful and more able to be around other people”
(id.);
•
Towards the end of 2011, Plaintiff “started
arriving late [to therapy], did not bring his
manual, . . . did not do the assigned homework[,
and] . . . was not using calming techniques taught
during this therapy” (id.);
•
In January 2012, Plaintiff “reported he had a good
relationship with his family,” as well as “that his
medications and group therapy helped him with his
symptoms,” and, after finding Plaintiff “engaged
and
cooperative”
(id.),
Dr.
Jeffrey
White
“recommended that [Plaintiff] continue with group
therapy, go through vocational rehabilitation
. . . , and increase his social networks” (Tr. 29);
and
26
•
“By
May
2012,
[Plaintiff]
had
declined
participation in individual therapy twice and he
was not taking his medications consistently as
prescribed” (id.).
The ALJ’s above-described analysis supplies substantial evidence to
support her finding that “the objective treatment record d[id] not
support [Dr. Hoeper’s] severe limitations.”
(Tr. 31.)
4. Medical Opinions of Louise Glogau, M.A., L.P.A.
In Plaintiff’s fourth issue on review, he asserts that “[t]he
ALJ erred by rejecting the opinion of Ms. Glogau, a consulting
examiner.”
omitted).)
(Docket Entry 11 at 18 (italics and single-spacing
Plaintiff’s allegations miss the mark.
On January 13, 2012, Ms. Glogau issued a report containing
opinions regarding Plaintiff’s ability to function mentally based
on an examination of Plaintiff on November 14, 2011. (Tr. 353-56.)
Ms. Glogau diagnosed Plaintiff with “[m]ood [d]isorder [s]econdary
to chronic pain in left foot and lower back” and “[d]epressive
[d]isorder [not otherwise specified]” (Tr. 353), characterized by
a “depressed mood during most of the day, nearly every day,”
“feeling sad and discouraged,” and “crying spells and mood swings”
(Tr. 354), as well as irritability and “feeling helpless and
hopeless” (Tr. 355).
Ms. Glogau further opined as follows:
These symptoms cause clinically significant impairment in
[Plaintiff’s]
social,
occupational,
and
personal
functioning. . . .
His mood swings prevent him from
being consistently productive at any job. His problems
with memory and concentration negatively impact his
ability to learn new skills. Due to cognitive problems,
he is not able to perform any job that requires extended
27
periods of concentration, problem solving, or decision
making. Because of his hyperirritability he is severely
compromised in his ability to initiate or sustain work or
social relationships. Because of his isolating behaviors
and lack of trust he is also severely compromised in his
ability to initiate or sustain social relationships. Due
to the longstanding nature of his illness and increased
health concerns, his prognosis for recovery is poor.
Therefore, I consider him to be permanently and totally
disabled and unemployable.
(Tr. 355-56.)
The ALJ assessed Ms. Glogau’s opinions as follows:
The opinion of evaluator Ms. Glogau is given little
weight.
Her opinion is evaluated as a non-acceptable
medical source pursuant to Social Security Ruling 0603p. . . . Her opinion was vague, as it did not indicate
how [Plaintiff] was specifically limited in vocational
terms. It was also based on a single interaction and was
heavily, if not entirely, dependent on [Plaintiff’s]
subjective representations.
(Tr. 30 (internal citation omitted).)
Plaintiff challenges the ALJ’s rejection of Ms. Glogau’s
opinions on four grounds: 1) the ALJ erred by rejecting Ms.
Glogau’s opinion “primarily because she . . . is not an ‘acceptable
medical source’” (Docket Entry 11 at 20 (quoting Tr. 30)); 2) the
ALJ erred by finding Ms. Glogau’s opinions vague, as Ms. “Glogau
did
‘indicate
how
[Plaintiff]
was
specifically
limited
in
vocational terms’” (id. at 21 (quoting Tr. 30)); 3) the ALJ’s
decision
to
discount
Ms.
Glogau’s
opinions
because
she
only
evaluated Plaintiff once qualifies as “self-contradictory” because
the ALJ “gave great weight to the opinions of the State nonexaminers . . . while giving little weight to a DDS-appointed
28
examiner” (id. at 22 (internal quotation marks omitted)); and 4)
“the record does not support the ALJ’s conclusion that [Ms.]
Glogau’s opinion was based heavily on [Plaintiff’s] subjective
report” (id. (internal quotation marks omitted)).
None of those
arguments has merit.
a. Non-Acceptable Medical Source
Plaintiff asserts that “it is strange – and extremely unfair
– that North Carolina DDS, with the Commissioner’s approval, would
appoint
[a
Licensed
Psychological
Associate
(“LPA”)]
as
a
consulting examiner, only to have the Commissioner disavow the
LPA’s opinion as being that of an ‘other source’ when it favors
[Plaintiff].”
(Id. at 20.)
Plaintiff maintains that “[t]he
Commissioner should be equitable [sic] estopped from attacking LPAs
as being non-acceptable medical sources.”
(Id.)
Plaintiff’s argument proceeds from a faulty premise – that the
DDS and/or the Commissioner ordered the evaluation by Ms. Glogau.
In fact, the record strongly suggests otherwise. First, the timing
of Ms. Glogau’s evaluation would belie Plaintiff’s claim that the
DDS ordered it.
The prior ALJ denied Plaintiff’s first claim for
DIB on March 22, 2010 (Tr. 63-76), and Plaintiff did not file his
second claim for DIB until April 9, 2013 (Tr. 252-53).
Thus,
Plaintiff had no pending claim for DIB at the time of Ms. Glogau’s
examination (November 14, 2011) or her report (January 13, 2012).
(See Tr. 353.)
Second, the index to the administrative transcript
29
lists Ms. Glogau’s report as “[o]ffice [t]reatment [r]ecords, dated
01/13/2012, from GLOGAU LOUISE MA, LPA” (Docket Entry 7 at 4
(emphasis added)), but lists the reports of consultative examiners
Dr. Anthony J. Smith and Dr. J. Staneata as “CE Psychology” and “CE
Internal Medicine[,]” respectively (id. (emphasis added)).
Thus,
no unfairness arises from the ALJ’s determination that Ms. Glogau
constitutes a non-acceptable medical source under the regulations.
(See Tr. 30.)
Plaintiff maintains that “[c]ourts are still unresolved on”
the secondary issue of whether an LPA constitutes a non-acceptable
medical source under 20 C.F.R. § 404.1513(a)(2).
at 21 n.9.)
(Docket Entry 11
In that regard, Plaintiff asserts that “the only case
to broach the subject – Wright v. Astrue, decided by this Court –
declared that ‘[t]he sole case to directly address the issue sides
with
[the
1:09CV0003,
p]laintiff.’”
2012
WL
(Id.
182167,
(quoting
at
*7
Wright
(M.D.N.C.
v.
Astrue,
Jan.
23,
No.
2012)
(unpublished) (in turn citing Helvey v. Astrue, No. 07-26-GWU, 2008
WL
162138,
at
*5
(E.D.
Ky.
Jan.
16,
2008)
(unpublished)),
recommendation adopted, slip op. (M.D.N.C. Mar. 12, 2012) (Eagles,
J.)).)
Although some uncertainty in the matter may remain, see Hobson
v. Berryhill, No. 5:16-CV-489-D, 2017 WL 2571284, at *10 (E.D.N.C.
May 22, 2017) (unpublished) (noting that issue “appear[ed] to be
unsettled
under
the
law”),
recommendation
30
adopted,
No.
5:16-CV-489-D,
2017
WL
2570664
(E.D.N.C.
June
13,
2017)
(unpublished), several cases decided after Wright and Helvey have
concluded that LPAs do not constitute acceptable medical sources
under the regulations.
858-FL,
2016
WL
See Carpenter, Jr. v. Colvin, No. 5:14-CV-
1258467,
at
*1
(E.D.N.C.
Mar.
30,
2016)
(unpublished) (deeming LPA non-acceptable medical source); Way v.
Colvin, No. 5:14-CV-411-D, 2015 WL 4545721, at *9 (E.D.N.C. July 1,
2015)
(unpublished)
acceptable
medical
(holding
source
that
under
LPA
does
not
regulations),
qualify
as
recommendation
adopted, No. 5:14-CV-411-D, 2015 WL 4560693 (E.D.N.C. July 28,
2015) (unpublished); Riggs v. Colvin, No. 4:13CV-00068-JHM, 2014 WL
527686, at *3 (W.D. Ky. Feb. 7, 2014) (“Under the regulations Ms.
Ferguson, a licensed psychological associate, is not qualified to
diagnose
[the
p]laintiff
with
depression
because
she
is
not
classified as an “acceptable medical source.”); Melvin v. Astrue,
No. 7:11-CV-131-FL, 2012 WL 4447617, at *5 (E.D.N.C. July 3, 2012)
(unpublished) (finding no error in ALJ’s determination that, under
the regulations, an LPA does not qualify as an acceptable medical
source),
recommendation
adopted,
No.
7:11-CV-131-FL,
2012
WL
4447607 (E.D.N.C. Sept. 25, 2012) (unpublished).
Moreover, the plain language of the regulations supports the
ALJ’s determination that an LPA does not constitute an “acceptable
medical source.”
decision
defined
The regulation in effect at the time of the ALJ’s
“acceptable
medical
31
sources”
to
include
“[l]icensed or certified psychologists,” which in turn “[i]nclude[]
.
.
.
school
psychologists,
or
other
licensed
or
certified
individuals with other titles who perform the same function as a
school
psychologist
in
a
school
setting,
for
purposes
of
establishing intellectual disability, learning disabilities, and
borderline
intellectual
functioning
only.”
20
C.F.R.
§ 404.1513(a)(2) (emphasis added). By specifying that “licensed or
certified individuals with other titles” performing “only” the
listed school-related functions qualify as “[l]icensed or certified
psychologists”
(and
thus
“acceptable
medical
sources”),
the
regulations signaled the Commissioner’s intent that other types of
psychological
practitioners
associates”)
do
not
(such
qualify
as
as
“licensed
“licensed
psychological
or
certified
psychologists” (and, by extension) do not qualify as “acceptable
medical sources.”8
Simply put, no sound basis exists to conclude that the ALJ
erred by classifying Ms. Glogau as a non-acceptable medical source.
8
Effective March 27, 2017, the regulations define an “acceptable medical source”
to include “[a] licensed or certified psychologist at the independent practice
level.” 20 C.F.R. § 404.1502(a)(1)(i) (2017) (emphasis added). In turn, the
Program Operations Manual System (“POMS”) provides that “[a] psychologist whose
licensure authorizes him or her to practice independently without supervision is
an [acceptable medical source].” POMS § DI 22505.004(A). In North Carolina, the
Psychology Practice Act requires supervision of LPAs by a “licensed psychologist,
or other qualified professionals,” when “engag[ing] in: assessment of personality
functioning; neuropsychological evaluation; psychotherapy, counseling, and other
interventions with clinical populations for the purpose of preventing or
eliminating symptomatic, maladaptive, or undesired behavior; and, the use of
intrusive, punitive, or experimental procedures, techniques, or measures.” N.C.
Gen. Stat. § 90-270.5(e) (2012) (emphasis added); see also 21 N.C. Admin. Code
§§ 54.2006, 54.2008 (providing detailed requirements regarding supervision of
LPAs). Thus, even under the new regulation, Ms. Glogau would not qualify as an
acceptable medical source.
32
b. Vagueness of Opinions
Plaintiff next contends that the ALJ erred by finding Ms.
Glogau’s
opinions
[Plaintiff]
was
vague,
as
specifically
Ms.
“Glogau
limited
(Docket Entry at 21 (quoting Tr. 30).)
in
did
‘indicate
vocational
how
terms.’”
Plaintiff focuses on Ms.
Glogau’s statement that, “‘[d]ue to cognitive problems, [Plaintiff]
is not able to perform any job that requires extended periods of
concentration’” (id. (quoting Tr. 356)), arguing that the statement
“addresses a specific functional factor – ability to maintain
extended concentration – that ALJs must consider in the ‘more
detailed [functional] assessment’ required under [Social Security
Ruling] 96-8p” (id. at 22).
Plaintiff’s argument fails, because it focuses exclusively on
Ms. Glogau’s opinion regarding Plaintiff’s ability to perform jobs
requiring extended periods of concentration to the exclusion of all
of Ms. Glogau’s other opinions.
As the Commissioner noted:
Ms.
Glogau
stated that
Plaintiff’s
“memory
and
concentration negatively impact his ability to learn new
skills.” But Ms. Glogau did not indicate to what extent
they “negatively impact[ed]” him and whether they
prevented the performance of unskilled work. Ms. Glogau
stated that Plaintiff’s cognitive problems prevented
“extended periods of concentration, problem solving, or
decision making.” But Ms. Glogau did not indicate how
long Plaintiff could retain these abilities, nor did she
indicate whether unskilled work would be impacted. Ms.
Glogau also indicated an inability to sustain work
relationships.
But Ms. Glogau did not specify
Plaintiff’s limitations in interacting with the public,
supervisors, or coworkers.
33
(Docket Entry 13 at 13-14 (internal citations omitted) (citing Tr.
356).) Thus, the ALJ did not err by assigning little weight to Ms.
Glogau’s opinions, in part, as vague.
(See Tr. 30.)
c. Status as Examining Source
Next, Plaintiff contends that the ALJ’s decision to discount
Ms. Glogau’s opinions because she only evaluated Plaintiff once
qualifies as “self-contradictory[,]” because the ALJ “gave great
weight to the opinions of the State non-examiners . . . while
giving little weight to a DDS-appointed examiner.”
(Docket Entry
11 at 22 (internal quotation marks omitted).) Plaintiff’s argument
glosses over the fact that state agency consultants are “highly
qualified physicians, psychologists, and other medical specialists
who are also experts in Social Security disability evaluation,” 20
C.F.R. § 404.1527(e)(2), as well as that the length of a medical
source’s treatment relationship with a claimant constitutes one of
the factors an ALJ must consider in assigning weight to that
source’s opinions, see 20 C.F.R. § 404.1527(c).
Moreover, Social Security Ruling 96-6p, Policy Interpretation
Ruling Titles II and XVI: Consideration of Administrative Findings
of Fact by State Agency Medical and Psychological Consultants and
Other Program Physicians and Psychologists at the Administrative
Law Judge and Appeals Council Levels of Administrative Review;
Medical Equivalence, 1996 WL 374180 (Jul. 2, 1996) (“SSR 96-6p”),
recognizes that ALJ reliance on state agency opinions depends on
34
their consistency with evidence subsequently received by the ALJ
and Appeals Council.
See SSR 96-6p, 1996 WL 374180, at *2
(permitting opinions of state agency psychological consultants to
receive weight “only insofar as they are supported by evidence in
the case record, . . . including any evidence received at the [ALJ]
and Appeals Council levels that was not before the [s]tate agency”)
(emphasis added). Here, the state agency psychological consultants
issued their opinions on May 13, 2013, and February 26, 2014,
respectively, which post-dated the relevant period in this case
from March 23, 2010, to June 30, 2012.
Thus, the consultants
lacked only Plaintiff’s testimony at the hearing and evidence
significantly post-dating the relevant period at the time they
issued their opinions.
err
merely
by
Under such circumstances, the ALJ did not
assigning
more
weight
to
the
state
agency
psychological consultants’ opinions than to those of Ms. Glogau.
d. Opinions Based on Plaintiff’s Subjective Reports
Plaintiff additionally maintains that “the record does not
support the ALJ’s conclusion that [Ms.] Glogau’s opinion was based
heavily on [Plaintiff’s] subjective report.”
22 (internal quotation marks omitted).)
(Docket Entry 11 at
According to Plaintiff,
Ms. Glogau “relied on her objective observations – reflected in the
[mental status examination (‘MSE’)] – that [Plaintiff’s] mood was
dysthymic, that he became tearful during the interview, and that he
35
had blunted affect and limited range of emotion.”
(Id. at 23
(citing Tr. 355).)
The ALJ did not err in according little weight to Ms. Glogau’s
opinions, in part, because Ms. Glogau based those opinions heavily
on Plaintiff’s subjective reports.
(See Tr. 30.)
portion
devotes
of
Ms.
Glogau’s
report
Plaintiff’s subjective reports.
A significant
itself
(See Tr. 354-55.)
to
reciting
Moreover, as
the Commissioner argues (see Docket Entry 13 at 13, 14), Ms.
Glogau’s perfunctory MSE did not document the severe limitations
Ms. Glogau assigned to Plaintiff (compare Tr. 355, with Tr. 35556).
In sum, Plaintiff has not demonstrated error with respect to
the ALJ’s evaluation of Ms. Glogau’s opinions.
5. CPP
In Plaintiff’s fifth assignment of error, he contends that,
“[g]iven [Plaintiff’s] moderate limitation in CPP, the ALJ was not
permitted to tell the VE merely that [Plaintiff] was restricted to
work
with
simple,
routine
tasks
but
was
required
to
pose
a
hypothetical that addressed [Plaintiff’s] limitation in staying on
task.”
(Docket Entry 11 at 24.)
More specifically, Plaintiff
maintains that the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015), held that “‘the ability to perform simple tasks
differs from the ability to stay on task . . . [and] [o]nly the
latter limitation would account for a claimant’s limitation in
36
[CPP].’”
638)).
(Docket Entry 11 at 24 (quoting Mascio, 780 F.3d at
Plaintiff’s contention does not warrant relief.
The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”
Mascio, 780 F.3d at 638.
However, that
court also allowed for the possibility that an ALJ could adequately
explain why moderate limitation in CPP would not result in any
limitation in the RFC.
Id.
A neighboring district court had
occasion to discuss this very point:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by
district judge) (unpublished) (emphasis added); see also Hutton v.
Colvin, No. 2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,
2015)
(unpublished)
(finding
reliance
on
Mascio
“misplaced,”
because ALJ “gave abundant explanation” for why unskilled work
adequately accounted for claimant’s moderate limitation in CPP, by
highlighting
the
claimant’s
daily
37
activities
and
treating
physicians’
opinions).
Here,
the
ALJ’s
decision
provides
a
sufficient explanation as to why restrictions to simple, routine
tasks (see Tr. 26) sufficiently accounted for Plaintiff’s moderate
deficit in CPP.
First, the ALJ noted that she gave Plaintiff “the benefit of
the doubt” in finding that he suffered moderate limitation in CPP
at step three (Tr. 26) and again during her discussion of the RFC
(see 29 (“Permitting [Plaintiff] to perform simple, routine tasks
gives
[Plaintiff]
the
benefit
of
the
doubt
regarding
any
distraction or lack of concentration caused by his depression,
anxiety, and general pain.”)).
The ALJ thus signaled that she
found that Plaintiff’s CPP deficit fell, at most, toward the mild
end of the moderate designation.
See Burger v. Colvin, No.
7:14CV00190, 2015 WL 5347065, at *14 (W.D. Va. Sept. 14, 2015)
(unpublished) (concluding ALJ explained why limitation to tasks
involving short, simple instructions sufficiently accounted for the
claimant’s moderate limitation in CPP where “ALJ appeared to just
give [the
claimant]
the
benefit
of
the
doubt
regarding
[the
moderate] limitation” in CPP).
Second, the ALJ discussed Plaintiff’s testimony regarding his
mental symptoms, including his statements “that he would lose his
train of thought and forget things he started” and “that his
attention span was poor,” but found his statements “not entirely
consistent with the medical evidence and other evidence in the
38
record for the reasons explained in th[e] decision.”
(Tr. 27.)
Notably, Plaintiff did not challenge the ALJ’s assessment of
Plaintiff’s subjective symptom reporting.
(See Docket Entry 11.)
Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
27-28.)
(See Tr.
In that regard, the ALJ gave “great weight” to the
opinions of the state agency psychological consultants (Tr. 30),
who each found that, notwithstanding moderate limitation in CPP
(see
Tr.
90,
124),
Plaintiff
could
“maintain
attention
and
concentration for short simple instructions” (Tr. 94, 130 (emphasis
added)), and remained capable of performing “unskilled work” (Tr.
90) and simple, routine, repetitive tasks (see Tr. 131).
Under these circumstances, the ALJ adequately explained why
restrictions to simple, routine tasks (see Tr. 26) sufficiently
accounted for Plaintiff’s moderate limitation in CPP. See Sizemore
v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017) (rejecting the
plaintiff’s argument under Mascio where ALJ relied on opinions of
consultative
examiner
notwithstanding
and
moderate
state
deficit
agency
in
CPP,
psychologist
the
plaintiff
that,
could
sustain attention sufficiently to perform SRRTs).
6. Plaintiff’s Need for a Cane
In Plaintiff’s sixth and final assignment of error, he asserts
that “[t]he ALJ’s hypotheticals failed to account for [Plaintiff’s]
need for a cane.”
(Docket Entry 11 at 25 (italics and single-
39
spacing omitted).)
More specifically, Plaintiff argues that,
“[g]iven that [he] was prescribed a cane, and the frequency with
which he needed to use it, the ALJ committed error by failing to
incorporate
question.”
this
limitation
(Id. at 26.)
into
the
RFC
and
hypothetical
Further, Plaintiff contends that, “[i]f
the ALJ thought [Plaintiff] did not need a cane all the time, then
she should have factored into the RFC and hypothetical the extent
to which he did need one” or “developed the record further.”
(Id.)
Plaintiff’s contentions fail as a matter of law.
“To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need
for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed (i.e., whether
all the time, periodically, or only in certain situations; distance
and terrain; and any other relevant information).” Security Ruling
96-9p, Policy Interpretation Ruling Titles II and XVI: Determining
Capability to Do Other Work – Implications of a Residual Functional
Capacity for Less Than a Full Range of Sedentary Work, 1996 WL
374185, at *7 (July 2, 1996) (“SSR 96-9P”) (emphasis added).
Moreover, “the legal issue does not turn on whether a cane was
‘prescribed’ . . . but whether a cane was ‘medically required.’”
Spaulding v. Astrue, 379 F. App’x 776, 780 (10th Cir. 2010).
Here,
although
Plaintiff
testified
that
the
Veterans
Administration (“VA”) prescribed a cane for him a few years before
40
the hearing (see Tr. 48), the record shows only that the physical
therapy department of the VA issued a cane to Plaintiff on January
13, 2011 (see Tr. 452-55) and, after he lost the first one, on
October 3, 2011 (see Tr. 483-86).
Even “assuming the [VA’s]
provision of the cane as a prosthetic appliance constitutes a
‘prescription,’” Spaulding, 379 F. App’x at 780, the VA records
here lack any statement by a treating physician as to the medical
necessity of the cane or the circumstances for which Plaintiff
needed it (see Tr. 452-55, 483-86). “Failing that, [the] ALJ [wa]s
not required to include the use of [an assistive device] in
[Plaintiff’s] RFC.” Fletcher v. Colvin, No. 1:14CV380, 2015 WL 450
6699, at *8 (M.D.N.C. July 23, 2015) (unpublished) (Webster, M.J.),
recommendation adopted, slip op. (M.D.N.C. Aug. 14, 2015) (Biggs,
J.).
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
41
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 28, 2018
42
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