WILSON v. KIJAKAZI
Filing
27
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 2/14/2022; that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff 9;s Motion to Reverse the Decision of the Commissioner [Doc. # 17 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 21 ] be GRANTED, and that this action be DISMISSED with prejudice. (Hicks, Samantha)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID WILSON,
Plaintiff,
v.
KILOLO I<.IJAKAZI,
Acting Commissioner of Social Security, 1
Defendant.
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1:20CV562
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff David Wilson ("Plaintiff') brought this action pursuant to Sections 205(g) and
1631(c)(3) of the Social Security Act (the "Act"), as amended (42 U.S.C. §§ 405(g) and
1383(c) (3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying his claims for Disability Insurance Benefits ("DIB") and Supplemental Security
Income ("SSI") under, respectively, Titles II and XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed applications for DIB and SSI on November 23, 2016, alleging
a disability onset date of July 29, 2016 in both applications.
(Tr. at 10, 266-78.) 2
His
1 I<:ilolo Kijakazi was appointed as the Acting Commissioner of Social Security on July 9, 2021. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, I<:ilolo l<:ijakazi should be substituted for Andrew M. Saul
as the Defendant in this suit. Neither the Court nor the parties need take any further action to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) .
2
Transcript citations refer to the Sealed Administrative Record [Doc. #13].
Case 1:20-cv-00562-TDS-JEP Document 27 Filed 02/14/22 Page 1 of 21
applications were denied initially (Tr. at 82-113, 148-56) and upon reconsideration (Tr. at 11447, 162-79). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge ("ALJ"). (Tr. at 180-81.) On March 27, 2019, Plaintiff, along with
his attorney, attended the subsequent video hearing, during which both Plaintiff and an
impartial vocational expert testified.
(Tr. at 10.)
Petitioner and his attorney attended a
supplemental hearing with the ALJ on June 6, 2019, with regard to expert medical opinions
obtained by the ALJ after the initial hearing.
(Tr. at 74-81, 1351-1402.)
Following the
supplemental hearing, the ALJ concluded that Plaintiff was not disabled within the meaning
of the Act (Tr. at 23), and, on April 23, 2020, the Appeals Council denied Plaintiffs request
for review of the decision, thereby making the ALJ's conclusion the Commissioner's final
decision for purposes of judicial review (Tr. at 1-5).
IL
LEGAL STANDARD
Federal law "authorizes judicial review of the Social Security Commissioner's denial of
social security benefits." Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is "extremely limited." Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). "The courts are not to try the case de novo." Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, "a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
correct legal standard."
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted).
"Substantial evidence means 'such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."' Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
2
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(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). "It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance." Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). "If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence." Hunter, 993 F.2d at 34 (internal quotation marks omitted).
"In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ]." Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). "Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ." Hancock, 667 F.3d at 472. "The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
ALJ's finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law." Craig v. Chater, 76 F.3d 585,
589 (4th Cir.1996).
In undertaking this limited review, the Court notes that "[a] claimant for disability
benefits bears the burden of proving a disability." Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, "disability" means the '"inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months."' Id. (quoting 42 U.S.C. § 423(d)(1)(A)). 3
"The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
3
3
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"The Commissioner uses a five-step process to evaluate disability claims." Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). "Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy." Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry.
For example, "[t]he first step
determines whether the claimant is engaged in 'substantial gainful activity.' If the claimant is
working, benefits are denied. The second step determines if the claimant is 'severely' disabled.
Hnot, benefits are denied." Bennettv. Sullivan, 917 F.2d 157,159 (4th Cir.1990).
On the other hand, if a claimant carries his or her burden at the first two steps, and if
the claimant's impairment meets or equals a "listed impairment" at step three, "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," then "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
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical." Craig, 76 F.3d at 589 n.1.
"RFC is a measurement of the most a claimant can do despite [the claimant's] limitations." Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect claimant's "ability to do sustained workrelated physical and mental activities in a work setting on a regular and continuing basis ... [which] means 8
4
4
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that RFC, the claimant can "perform past relevant work"; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which "requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the claimant's
impairments." Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
"whether the claimant is able to perform other work considering both [the claimant's RFC]
and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust
to a new job." Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its
"evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community," the claimant qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in "substantial gainful
activity" since his alleged onset date. The ALJ therefore concluded that Plaintiff met his
burden at step one of the sequential evaluation process. (Tr. at 12.) At step two, the ALJ
further determined that Plaintiff suffered from the following severe impairments:
Lumbar discogenic and degenerative disc disease with left radiculopathy; tibialis
anterior myofasciitis; diabetes mellitus; obesity; chronic obstructive pulmonary
disease (COPD); bipolar/ depressive disorder; anxiety disorder; antisocial
personality disorder; and obesity[.]
hours a day, for 5 days a week, or an equivalent work schedule" (internal emphasis and quotation marks
omitted)). The RFC includes both a "physical exertional or strength limitation" that assesses the claimant's
"ability to do sedentary, light, medium, heavy, or very heavy work," as well as "nonexertional limitations
(mental, sensory, or skin impairments)." Hall, 658 F.2d at 265. "RFC is to be determined by the ALJ only after
[the ALJ] considers all relevant evidence of a claimant's impairments and any related symptoms (e.g., pain)."
Hines, 453 F.3d at 562-63.
5
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(Tr. at 13) (internal citations omitted). The ALJ found at step three that none of these
impairments, individually or in combination, met or equaled a disability listing. (Tr. at 13-15.)
Therefore, the ALJ assessed Plaintiffs RFC and determined that he could perform light work
with the following additional limitations:
[Plaintiffj could sit six of eight hours, two hours at a time; he could stand/walk
six of eight hours, two hours at a time. [Plaintiffj could occasionally operate
foot controls. He could occasionally climb ramps/ stairs, balance and stoop.
He should avoid work on ladders/ scaffolds; he should not kneel, crouch, or
crawl. [Plaintiffj could occasionally work with moving mechanical parts,
operate a motor vehicle, and tolerate humidity and wetness, pulmonary irritants,
dusts, odors, and fumes, and extremes of heat/ cold. He could frequently
tolerate vibration. [Plaintiffj could work in loud (heavy traffic) noise (Ex. 26F).
Secondary to mental impairments, [Plaintiffj could understand, remember, and
carryout instructions for routine, repetitive type unskilled work. He could
sustain attention and concentration for two-hour segments of time in an eighthour day. [Plaintiffj could perform task-related, work-oriented contact with
supervisors and coworkers; he could interact with the general public for brief
and superficial interactions. He could adapt to changes in the work setting for
routine, repetitive type unskilled work (Ex. 27F). [Plaintiffj should not have to
perform fast pace high production goal work.
(Tr. at 15.) Based on this determination and the testimony of a vocational expert, the ALJ
determined at step four of the analysis that all of Plaintiffs past relevant work exceeded his
RFC. (Tr. at 21.) However, the ALJ found at step five that, given Plaintiffs age, education,
work experience, RFC, and the testimony of the vocational expert as to these factors, he could
perform other jobs available in significant numbers in the national economy. (Tr. at 21-23.)
Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. at 23.)
Plaintiff now challenges the ALJ's assignment of "limited weight" to the medical
opinion rendered by Plaintiffs treating psychiatrist, Dr. Lee A. Smith, who was a Resident at
the UNC Department of Psychology (Tr. at 18, 618) and who treated Plaintiff under the
supervision of various Attending Physicians from August 2017 to June 2019. On January 8,
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2019, Dr. Smith completed a two-page, check-box medical source statement provided by
Plaintiff's attorney. (Tr. at 1249-51.) When asked whether Plaintiff's impairment affected his
ability to understand, remember, and carry out instructions, Dr. Smith indicated that Plaintiff's
"anxiety, depression, [and] OCD-like symptoms" would slightly impair his ability to
understand, remember, and carry out short, simple instructions. (Tr. at 1250.) Dr. Smith
further indicated that Plaintiff would experience moderate or occasional difficulties in his
ability to understand and remember detailed instructions and in his ability to make simple
work-related decisions, and that Plaintiff would experience marked or frequent difficulties in
his ability to carry out detailed instructions. (Tr. at 1250.) Dr. Smith next evaluated Plaintiff's
social abilities and found marked or extreme limitations in all areas. Specifically, he posited
that Plaintiff would experience marked or frequent problems interacting appropriately with
supervisors and co-workers and responding appropriately to changes in a routine work setting,
and that he would encounter extreme or constant difficulties interacting appropriately with
the public and responding appropriately to work pressures. (Tr. at 1251.) Dr. Smith included
a note that Plaintiff "has been in ongoing treatment for these problems, has never missed an
appointment, and is working to address these disabling problems. He deserves our society's
support in this." (Tr. at 1251.)
The ALJ recounted Dr. Smith's opinions in her decision, and ultimately found as
follows:
Dr. Smith's assessment is given limited weight to the extent of work precluding
limitations. The undersigned has carefully considered the psychiatrist's
opinions, including other progress notes.
In July 2017, Dr. Smith
recommended having a social security hearing as soon as possible to prevent
[Plaintiff's] decompensation due to waiting (Ex. 14F). Various reports including
in September 201 7 [noted that Plaintiff] did not have symptoms of OCD to the
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point of needing treatment (Ex. 1 lF /9) . Notably, the mental health progress
notes of record indicated approximately monthly follow-ups for conservative
care and many unremarkable mental status findings (Ex. 16F; 18F). [Plaintiff]
was to abstain from illicit substances and take medication as prescribed, which
would not precludeO working. Some records refer to discouragement with his
former employer and denial of worker's compensation (Ex. 16F/ 76). [Plaintiff]
conceded he needed to increase his physical activity to help [with] his
functioning, which Dr. [Smith] also encouraged, including in April 2018.
Mental status examination noted [Plaintiff] had some anxiety and depression,
but he was well oriented and able to concentrate, with intact memory, with no
evidence of hallucinations or response to internal stimuli (Ex. 16F /388). The
[RFC] is based on the opinion of the medical expert Dr. Steiner, Ph.D., who
noted "very little evidence" to support [Dr. Smith's] ratings (Ex. 27F / 6). The
medical expert was able to review all the record evidence (Ex. 27F).
At the supplemental hearing, [Plaintiffs] representative objected to the opinions
of Dr. Steiner. This included that the medical expert should have fully
considered Dr. Smith's assessment (Ex. 17F). Dr. Smith extensively treated and
evaluated [Plaintiff] and found he had a PHQ-9 (Patient Health Questionnaire)
depression score of 23 (Ex. 16F). While Dr. Steiner found a report where
[Plaintiff] was well groomed, other progress notes all indicated [that Plaintiff]
was disheveled (Ex. 16F; 18F). The representative's contentions are not
determinative.
The undersigned has carefully considered the record evidence. [Plaintiff] was
noted as disheveled including December 2017 to June 2018 to February 2019
(Ex. 16F; 18F). Risk assessments included [that Plaintiff] was at [a] chronic
elevated risk of self harm/ suicide for factors including current substance abuse,
though he did not warrant inpatient psychiatric care (Ex. 16F /100). Stressors
included finances, worker's compensation and disability (Ex. 16F / 100, 102, 104;
Ex. 18F/ 41, 59, 68). For example in January and March 2018, patient
instructions included to refrain from using illicit substances (Ex. 16F / 155, 353).
[Plaintiff] was noted by Dr. Smith to have severe depression, including in June
2018 with a PHQ-9 score of 26 (i.e., Ex. 16F/ 502) . This documentation was
reviewed by the medical expert, Dr. Steiner (Ex. 27F / 2, 3). No evidence
indicates a mental impairment prevents treatment. [Plaintiff] has not been
hospitalized for mental health issues. He was to remember to take medications
as prescribed, using an alarm if needed (Ex. 16F/ 151). Follow up continued
for conservative care with medications about every three weeks (Ex. 16F; 18F),
which is inconsistent with disabling impairments.
As mentioned, Dr. Steiner, Ph.D., medical expert, evaluated the record evidence
and provided a Mental Statement of Ability to Do Work-Related Activities.
[Plaintiff] "is able to understand, retain, and follow instructions; he can perform
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[simple routine repetitive tasks]" (Ex. 27F/6). He has moderate to marked
limitation for complex work; he has moderate limitation to interact with others
and respond appropriately to usual work situations and to changes in a routine
work setting (Ex. 27F8-9). This information is incorporated in the residual
functional capacity.
The opinion of Dr. Steiner, Ph.D., is based on a longitudinal review of the
record evidence (Ex. 27F). [Plaintiffs] mental impairment(s) do not prevent
working in competitive employment for a range of unskilled work involving
limited contact with others. Dr. Steiner is a Clinical Psychologist, working as a
supervisor and seeing patients in private practice. He provides psychological
testing, staff consultation, supervises and trains graduate psychology students,
and performs ethics guidance for the psychology practice. Dr. Steiner is familiar
with the application of social security disability regulations. He is recognized as
a medical expert by the Commissioner of Social Security and his opinion is given
great weight (Ex. 24F) .
(Tr. at 18-19.)
Plaintiff contends that the above rejection of Dr. Smith's treating physician opinion is
contrary to recent guidance from the Court of Appeals for the Fourth Circuit. For claims like
Plaintiffs that are filed before March 24, 2017, ALJs evaluate the medical opinion evidence in
accordance with 20 C.F.R. § 404.1527(c). Brown v. Comm'r Soc. Sec., 873 F.3d 251,255 (4th
Cir. 2017). "Medical opinions" are "statements from acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions." Id. (citing 20 C.F.R. § 404.1527(a)(1)). While the regulations mandate
that the ALJ evaluate each medical opinion presented to her, generally "more weight is given
'to the medical opinion of a source who has examined you than to the medical opinion of a
medical source who has not examined you."' Id. (quoting 20 C.F.R. § 404.1527(c)(1)). And,
under what is commonly referred to as the "treating physician rule," the ALJ generally accords
the greatest weight-controlling weight-to the well-supported opinion of a treating source
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as to the nature and severity of a claimant's impairment, based on the ability of treating sources
to
provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c)(2). However, if a treating source's opinion is not "well-supported by
medically acceptable clinical and laboratory diagnostic techniques" or is "inconsistent with
other substantial evidence in [the] case record," it is not entitled to controlling weight.
20
C.F.R. § 404.1527(c)(2); see also Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *4;
Brown, 873 F.3d at 256; Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178. 5 Instead, the opinion
must be evaluated and weighed using all of the factors provided in 20 C.F.R. § 404.1527(c)(2)(c)(6), including (1) the length of the treatment relationship, (2) the frequency of examination,
(3) the nature and extent of the treatment relationship, (4) the supportability of the opinion,
(5) the consistency of the opinion with the record, (6) whether the source is a specialist, and
(7) any other factors that may support or contradict the opinion. However, opinions by
physicians regarding the ultimate issue of whether a plaintiff is disabled within the meaning of
the Act are never accorded controlling weight because the decision on that issue is reserved
for the Commissioner alone. 20 C.F.R. § 404.1527(d) .
5 For claims filed after March 27, 2017, the regulations have been amended and several of the prior Social
Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social
Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to
any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources."
20 C.F.R. § 404.1520c. However, the claim in the present case was filed before March 27, 2017, and the Court
has therefore analyzed Plaintiffs claims pursuant to the treating physician rule set out above.
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Where an ALJ declines to give controlling weight to a treating source opinion, she must
"give good reasons in [her] ... decision for the weight" assigned, taking the above factors into
account. 20 C.F.R. § 404.1527(c)(2). This requires the ALJ to provide "sufficient explanation
for 'meaningful review' by the courts." Thompson v. Colvin, No. 1:09CV278, 2014 WL
185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see also SSR 96-2p (noting that
the decision "must contain specific reasons for the weight given to the treating source's
medical opinion, supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source's medical opinion and the reasons for that weight"); Arakas v. Comm'r Soc. Sec., 983
F.3d 83, 107 (4th Cir. 2020) ("[T]he opinion of a claimant's treating physician [must] be given
great weight and may be disregarded only if there is persuasive contradictory evidence."
(quotation omitted); Dowling v. Comm'r Soc. Sec., 986 F.3d 377, 385 (4th Cir. 2021) (''While
an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a
medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's
decision that he meaningfully considered each of the factors before deciding how much weight
to give the opinion.").
Here, Plaintiff argues that "[t]he reasons provided by the ALJ for rejecting Dr. Smith's
treating psychiatry are not supported by substantial evidence." (Pl.'s Br. [Doc. #18] at 6.) In
particular, Plaintiff contends that the ALJ failed to properly analyze the relevant factors set
out in the regulations, including "Dr. Smith's extended treatment relationship with [Plaintiff]
as a provider specializing in psychiatry, the frequency of the examination (approximately every
three weeks), or the support for his opinion in his notes documenting [Plaintiff']s ongoing
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treatment for longstanding mental conditions with persistent symptoms and intermittent
medication effectiveness." (Pl.'s Br. at 9) (citing Tr. at 16, 1051, 1089, 1091, 1119, 1121, 1169,
1196, 1257, 1274, 1292, 1301, 1310, 1319). Plaintiff further asserts that, although "the ALJ
stated progress notes did not indicate overt concern, ... she did not explain this statement"
or reconcile it with Plaintiff's "need for multiple psychiatric medications and therapy as well
as frequent medication changes."
(Pl.'s Br. at 9.)
Overall, Plaintiff argues that the ALJ
"substituted h[er] own lay opinion for a medical expert's when evaluating the significance of
clinical findings." (Pl.'s Br. at 9.)
However, in the very next sentence of his brief, Plaintiff further contends that the ALJ
erred in rejecting Dr. Smith's opinion in favor of opinion evidence from Dr. Joseph Steiner,
Ph.D., LISW-S, who Plaintiff characterizes as a "non-examining record reviewer." (Pl.'s Br.
at 10.) In fact, as clearly set out in the administrative decision, Dr. Steiner served as a medical
expert in this case. (Tr. at 19.) Plaintiff eventually acknowledges this fact, but, citing Brown,
873 F.3d at 268, argues that the ALJ nevertheless "erred in relying on the theory that Dr.
Steiner had reviewed the administrative record and thereby . . . somehow had greater
knowledge of the longitudinal medical and mental [health] evidence that [Plaintiff's] treating
psychiatrist." (Pl.'s Br. at 11.)
Plaintiff is correct that, in Brown, "the ALJ's analysis 'effectively turned the treating
physician rule on its head, deferring to a physician who had never laid eyes on Brown while
dismissing the opinions of those who had examined and treated him dozens of times over
many years."' 873 F.3d at 268 (citations and alterations omitted).
The Fourth Circuit
determined that the ALJ in that case erroneously relied upon the testimony of the medical
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expert, Dr. Jonas, as the sole basis for refuting the well-supported opinions of Plaintiff's
treating physician as well as the bulk of the record evidence. Notably, the crux of the Brown
determination was the lack of substantial evidence to support the opinions of Dr. Jonas or the
RFC based upon them. In contrast, in cases where the opinions of non-examining medical
consultants or medical experts are consistent with the record as a whole, an ALJ is entitled to
rely upon them. See, e.g., Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986); Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). This remains true even when the medical
expert's opinion contradicts that of a treating physician, because, in such cases, the treating
physician's opinion lacks the two most critical factors identified in 20 C.F.R. § 404.1527(c):
consistency and supportability. Id.
Here, as set out above, the ALJ's treating physician analysis relied, not only on the
opinions of the medical expert, Dr. Steiner, but also upon all of the factors relevant to a
treating physician analysis. For example, contrary to Plaintiff's assertion, the ALJ specifically
acknowledged that Dr. Smith was Plaintiff's longtime treating psychiatrist and that he treated
Plaintiff every three to four weeks throughout the time period at issue. (Tr. at 16) (identifying
Dr. Smith as Plaintiff's "longtime psychiatrist"); (Tr. at 17) (noting that Plaintiff "received
monthly counseling therapy and medications, with Dr. Smith, M.D."); (Tr. at 18) (noting that
Dr. Smith's records reflected "monthly follow-ups for conservative care"); (Tr. at 19) ("Dr.
Smith extensively treated and evaluated" Plaintiff). The ALJ further determined that Plaintiff's
mental impairments, including bipolar/ depressive disorder, anxiety disorder, and antisocial
personality disorder, were severe impairments which required ongoing treatment and impacted
his ability to perform daily work activities. (Tr. at 13, 20.) She also expressly considered
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Plaintiffs non-severe impairments, including OCD-like symptoms and a possible substance
use disorder, and their impact on Plaintiffs RFC. (Tr. at 13, 20.) However, the ALJ ultimately
concluded that Plaintiffs "severe and non-severe mental impairments, alone and in
combination[,] would not preclude working." (Tr. at 20.)
In reaching this conclusion, the ALJ explained that Dr. Smith's own progress notes
contain "many unremarkable mental status findings" which did not support the stringent
limitations he opined. (Tr. at 18.) These included mental status examinations in which Dr.
Smith noted that Plaintiff "had some anxiety and depression, but he was well oriented and
able to concentrate, with intact memory, [and] no evidence of hallucinations or response to
internal stimuli." (Tr. at 19 (citing Tr. at 1091).) The ALJ also noted that records reflected
conservative treatment, that Plaintiff was encouraged in counseling to increase activity, that
he worked on cars as a hobby and assisted with work at the mobile home lot where he lived,
that he had begun to socialize more and had even resumed dating. (Tr. at 17.) In this regard,
Dr. Smith's progress notes reflect that Plaintiff came for an initial evaluation in August 2017,
with depression that had recently worsened, and Dr. Smith started him on medication. (Tr. at
618-20.) When Plaintiff returned the next month in September 2017, Dr. Smith noted a
significant improvement in his symptoms (Tr. at 625), and at his next visit a few months later
in December 2017 his evaluation reflects only mild depression (Tr. at 789) and Plaintiff
reported that he was able to "leave the house and do stuff' (Tr. at 779). Plaintiff experienced
an increasing of his symptoms in the spring, with severe depression in March and April 2018
around the time of the denial of his Worker's Compensation claim. (Tr. at 18, 19,985, 1061,
1091, 1121, 1181, 1205). However, Dr. Smith's records reflect that while still severe, Plaintiffs
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symptoms were getting "better" in May and June 2019 (Tr. at 1169, 1196), and by July and
August 2018, Dr. Smith's records reflect that while Plaintiff still struggled, he was getting out
of the house more including social activities with friends and trips with his mother (Tr. at 17,
1257, 1274). 6 Dr. Smith's record for the next visit in October 2018 reflect that Plaintiff met
someone on a dating app and had gone on a date. (Tr. at 17, 1292). Records from November
2018 and early 2019 reflect continued anxiety and difficulties getting out of the house, but also
reflect that he was working on projects for friends. (Tr. at 17, 1301, 1310, 1319). These
records support the ALJ's findings and conclusion. The ALJ also cited other treatment records
from Plaintiffs other providers, including his prior mental health provider, reflecting that
Plaintiff was cooperative, pleasant, personable, and friendly. (Tr. at 14); (Tr. at 428, 592, 696,
701.)
In addition, the ALJ noted that Dr. Smith's progress notes do not reflect "overt
concern" (Tr. at 17-18), given the conservative treatment with medication management and
the repeated notations that Plaintiffs OCD-like symptoms do not warrant intervention, that
"there is no acute risk for suicide or violence" and that "he "does not currently require acute
inpatient psychiatric care." (Tr at 619, 625, 802-03, 1118-19, 1193-94, 1254.) Moreover, as
noted above, the ALJ further relied on the expert analysis by Dr. Steiner, who found after
reviewing all of the records that there was "very little evidence" to support Dr. Smith's
opinion. (Tr. at 19, 1401.)
In light of the lack of support with the record as a whole, the ALJ ultimately deviated
from Dr. Smith's findings as set out above. For instance, although Dr. Smith opined that
In this time frame, records from other providers similarly reflect that he was going out to dinner, sometimes
once a week and sometimes 4-5 times per week, depending on how he was feeling (fr. at 682), and had helped
a friend move recently (fr. at 671).
6
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Plaintiff would experience marked to extreme limitations in terms of social interaction, the
ALJ ultimately determined that Plaintiff had no more than a moderate limitation in this area.
Specifically, the ALJ explained that, "[w]hile [Plaintiffj testified that he seldom leaves home,
he [was] noted to associate . . . out of the house with friends," and was cooperative during
examinations. (Tr. at 14.) This determination is consistent with the findings of the State
agency psychological consultants, the medical expert, and the consultative examiner, none of
whom opined that Plaintiff required greater limitations than those set out in the administrative
decision. (Tr. at 15, 93, 142, 592-93.) In fact, neither the consultative examiner nor the State
agency psychological examiner at the initial level opined that Plaintiff required any restrictions
in his interaction with others. (See Tr. at 108, 593.) The ALJ considered these opinions, but
in light of Plaintiff's history of anxiety, depression, and agoraphobia, along with his treatment
for these impairments, determined that Plaintiff required social limitations. (Tr. at 18-19 .) At
the other end of the spectrum, Dr. Smith posited that Plaintiff would experience extreme or
constant difficulty interacting appropriately with the public and responding appropriately to
work pressures and would experience marked or frequent problems interacting appropriately
with supervisors and coworkers and responding to changes in a routine work setting. (Tr. at
1251.) In support of these assertions, Dr. Smith cited Plaintiff's diagnoses, but, as noted above
and in the administrative decision, nothing in the provider's notes or opinion ties these
stringent limitations to any clinical findings. (Tr. at 18-19, 1251.) Accordingly, the ALJ relied
on the opinions of the medical expert, Dr. Steiner, and the State agency psychological
consultant on reconsideration, Richard Cyr-McMillon, Ph.D., both of whom opined that
Plaintiff had no more than moderate limitations interacting with others. (Tr. at 18, 142, 1404.)
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In particular, the RFC mirrors the findings of Dr. Cyr-McMillon, who found that Plaintiff
"may have some social interaction limitations but can accept direction from a supervisor and
maintain adequate relationships with co-workers in a work setting with minimal social
interaction requirements and only casual public contact." (Tr. at 15, 142.) Plaintiff points to
no evidence other than Dr. Smith's conclusory opinion which suggests a need for greater
limitations.
In addition to supporting a lesser degree of impairment in Plaintiffs ability to interact
with others than suggested by Dr. Smith, the record as a whole supports the ALJ's RFC
assessment regarding Plaintiffs restrictions in his abilities to understand, remember, and apply
information, concentrate, persist, and maintain pace, and adapt and manage himself. With
regard to understanding, remembering, and applying information, the ALJ noted that Plaintiff
had an average IQ and no cognitive impairment. (Tr. at 14.) With regard to adapting and
managing himself, the ALJ acknowledged that Plaintiff "appeared disheveled in most
psychological treatment notes," had past struggles with substance abuse, and alleged that his
"physical pain interfered with functioning." (Tr. at 14.) However, in finding that Plaintiffs
limitations in this area were no more than mild, she further recounted Plaintiffs testimony
that he performed some cleaning and cooking and was able to perform car reupholstery work
at his home. (Tr. at 14.) The ALJ further determined that Plaintiff had no limitation in his
ability to concentrate, persist, and maintain pace. (Tr. at 14.) Nevertheless, giving Plaintiff
the benefit of the doubt, the ALJ ultimately including RFC limitations relating to all four of
the above functional areas. (Tr. at 15.)
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For example, despite finding that Plaintiff had only mild limitations in understanding,
remembering, or applying information, the ALJ limited Plaintiff to understanding,
remembering, and carrying out instructions for routine, repetitive-type unskilled work. (Tr. at
15.) Similarly, despite finding no limitation in terms of concentration, persistence, or pace,
the ALJ limited Plaintiff to jobs that required him to sustain attention and concentration for
no more than two-hour segments of time in an eight-hour day and precluded him from
performing fast-paced or high production work. (Tr. at 15.) She further found that Plaintiffs
moderate limitation in interacting with others restricted him to task-related, work-oriented
contact with supervisors and coworkers and only brief and superficial interactions with the
general public. (Tr. at 15.) Finally, the ALJ determined that Plaintiffs mild limitation in
adapting and managing himself did not preclude him from adapting to changes in the work
setting for routine, repetitive-type unskilled work. (Tr. at 15.) The ALJ specifically noted that
she included these additional limitations that were "claimant favorable" based on the medical
expert's opinion (Tr. at 20).
More importantly for purposes of Plaintiff's current challenge, none of the restrictions
included in the RFC assessment, other than the social limitation discussed above, conflict with
Dr. Smith's opinion evidence. Dr. Smith posited that Plaintiff would have only slight difficulty
understanding, remembering, and carrying out short, simple instructions; moderate or
occasional difficulty understanding and remembering detailed instructions; moderate or
occasional difficulties making judgments on simple work-related decisions; and marked or
frequent problems carrying out detailed instructions.
(Tr. at 1250.)
These findings are
consistent with the ALJ's determination that Plaintiff could understand, remember, and carry
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out routine, repetitive-type unskilled work and adapt to changes in the work setting for routine,
repetitive-type unskilled work. (Tr. at 15.) Moreover, the ALJ included additional, stringent
mental RFC limitations beyond those opined by Dr. Smith, relying on the opinions of both
Dr. Steiner and Dr. Cyr-McMillan.
As a final matter, the Court notes that Plaintiff objected to Dr. Steiner's opinions at his
supplemental hearing, and the ALJ specifically addressed those objections both during the
hearing and in the administrative decision.
(Tr. at 19, 79-81.)
In particular, the ALJ
acknowledged the results of a Patient Health Questionnaire on which Plaintiffs scores
indicated severe depression. (Tr. at 80.) Plaintiffs counsel argued that this score supports Dr.
Smith's Medical Source Statement, which Dr. Steiner characterized as supported by "very little
evidence." (Tr. at 19, 1401.) However, the ALJ fully considered the evidence as a whole, as
discussed above, in reaching her conclusion regarding the Dr. Smith's opinion. Moreover, as
noted by the ALJ, nothing in Dr. Smith's statement, treatment notes, or elsewhere in the
record connects Plaintiffs depression, severe or otherwise, to the need for more extreme social
limitations.
Overall, the ALJ evaluated and weighed Dr. Smith's opinions using all of the factors
provided in 20 C.F.R. § 404.1527(c)(2)-(c)(6), including (1) the length of the treatment
relationship, (2) the frequency of examination, (3) the nature and extent of the treatment
relationship, (4) the supportability of the opinion, (5) the consistency of the opinion with the
record, (6) whether the source is a specialist, and (7) other factors that may support or
contradict the opinion. These factors properly included the opinions of the medical expert,
the other opinions of record, and the record as a whole. Plaintiff essentially disagrees with the
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ALJ's analysis and ask the Court to re-weigh the evidence. However, it is not the function of
this Court to re-weigh the evidence or reconsider the ALJ's determinations if they are
supported by substantial evidence. As noted above, "[w]here conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled, the responsibility for that
decision falls on the [ALJ]." Hancock, 667 F.3d at 472 (quotation omitted). Thus, the issue
before the Court is not whether a different fact-finder could have drawn a different conclusion,
but rather whether the ALJ's determination is supported by substantial evidence. As recently
noted by the Supreme Court in Biestek v. Berryhill, 139 S. Ct. 1148 (2019), "whatever the
meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not
high. Substantial evidence, this Court has said, is 'more than a mere scintilla.' .. .It meansand means only-'such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."' In this case, because substantial evidence supports both the ALJ's
treatment of Dr. Smith's opinion and the RFC assessment, the Court finds no basis for
remand. 7
IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding
no disability be AFFIRMED, that Plaintiffs Motion to Reverse the Decision of the
7 The Court notes that Plaintiff filed a Suggestion of Subsequently Decided Authority [Doc. #26] citing Collins
v. Yellen, 141 S. Ct. 1761 (2021) and Seila Law, LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183
(2020), as well as a Memorandum Opinion for the Deputy Counsel to the President on the Constitutionality of
the Commissioner of Social Security's Tenure Protection. However, these cases do not relate to any of the
claims actually raised in this case. Therefore, the filing is not proper under Local Rule 7.3(i) and is STRICKEN.
To the extent it may be an attempt to raise a new claim, it is contrary to the Court's Order and Notice [Doc.
#14] requiring claims to be raised by motion filed by March 22, 2021.
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Commissioner [Doc. #17] be DENIED, that Defendant's Motion for Judgment on the
Pleadings [Doc. #21] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 14th day of February, 2022.
/s/ - Elizabeth Peake
Toi
United States Magistrate Judge
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