Troughton v. Commissioner of Social Security Administration
Filing
14
MEMORANDUM OF DECISION AND ORDER granting 9 Motion for Summary Judgment; denying without prejudice the 13 Motion for Summary Judgment. Decision of the Commissioner is VACATED and action is REMANDED to the Commissioner to conduct a new hearing. Action is DISMISSED. Signed by District Judge Max O. Cogburn, Jr on 10/28/2014. (klb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:13-cv-00338-MOC
JOHN PAUL TROUGHTON,
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OF DECISION
and
ORDER
THIS MATTER is before the court upon Plaintiff’s Motion for Summary Judgment and
the Commissioner’s Motion for Summary Judgment. Having carefully considered such motions
and reviewed the pleadings, the court enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I.
ADMINISTRATIVE HISTORY
Plaintiff filed applications for disability insurance benefits and supplemental security
income on June 11, 2010, alleging disability beginning on December 31, 2008. Both claims were
initially denied on November 18, 2010, and upon reconsideration on September 5, 2011. Plaintiff
requested and was granted a hearing before an administrative law judge (“ALJ”) on both claims.
After conducting a hearing on May 18, 2012, the ALJ issued a decision which was unfavorable
to Plaintiff, from which Plaintiff appealed to the Appeals Council. The Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision, making it the final decision of the
Commissioner of Social Security (“Commissioner”). Thereafter, Plaintiff timely filed this action.
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II.
FACTUAL BACKGROUND
On the alleged onset date of December 31, 2008, Plaintiff was 45 years of age. Plaintiff
completed one year of college and previously worked as a cook, stock clerk, and self-employed
floor coverer. Plaintiff reported that his last day of work as a floor coverer was the onset date.
Plaintiff was last insured on March 31, 2011. Plaintiff alleges that he became disabled from all
forms of substantial gainful employment due to bipolar I disorder, hypertension, and alcohol
dependence. In supporting his disability claim and inability to work, claimant explained
numerous medical conditions and related treatment procedures.
In terms of mental health conditions, Plaintiff has been diagnosed with bipolar disorder,
anxiety disorder, and substance abuse conditions, including alcohol dependence. Since 2008, he
has been hospitalized at least four times for various reasons related to both his mental health and
his alcoholism. In that time, Plaintiff has been intermittently homeless. Plaintiff has sought
treatment for his mental health issues and alcohol dependence at several facilities in North
Carolina. Plaintiff has been prescribed several types of drugs as part of his psychiatric treatment.
In terms of physical ailments, the record indicates that Plaintiff has tendonitis in his left ankle, a
herniated disc, gout, and chronic back pain.
In February 2010, Plaintiff was referred to an “Assertive Community Treatment Team”
(ACTT), which has since assisted with his daily functioning and helped him manage his
medications, obtain psychiatric treatment, and secure safe housing. Through ACTT, Plaintiff
received psychiatric treatment from Dr. Matthew Holmes from March 2010 through late summer
2011, and from Dr. Antonio Bird from fall 2011 through the date of decision. Both doctors
completed mental functional capacity questionnaires for Plaintiff in May 2012 in relation to
Plaintiff’s disability claim.
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In his questionnaire, Dr. Bird noted Plaintiff’s bipolar disorder, history of alcohol
dependence, and current depression and anxiety disorders. Administrative Transcript (“Tr.”) at
802. He also noted Plaintiff’s history of full blown manic episodes, including increased energy,
irritability, decreased need for sleep, and a tendency to get into fights. He noted that Plaintiff was
somewhat responsive to medications for mood stabilization, though he could not always afford
them. Id. Dr. Bird opined Plaintiff was unable to meet competitive standards in the following
categories relevant to unskilled work: remembering work-like procedures; maintaining regular
attendance and being punctual within strict, customary tolerances; working in proximity to others
without being unduly distracted; making simple work-related decisions; asking simple questions
or requesting assistance; accepting instructions and responding appropriately to criticism from
supervisors; and responding appropriately to change in a routine setting. Id. at 804. He also
opined that Plaintiff had no useful ability to function with respect to the following: maintaining
attention for a two-hour segment; completing a normal workday or work week without
interruptions from psychologically based symptoms; performing at a consistent pace without
unreasonable rest; and dealing with normal work stress. Id. He opined Plaintiff could not
perform any semiskilled or skilled work. Id.
Dr. Holmes also outlined Plaintiff’s limitations resulting from bipolar disorder and
alcohol dependence, noting irritability, depressive episodes, irregular sleep patterns, and suicidal
ideation leading to inpatient care admission. Id. at 809. Dr. Holmes placed restrictions similar to
those of Dr. Bird on Plaintiff’s ability to meet competitive standards relevant to unskilled work.
He opined that Plaintiff would be unable to meet competitive standards with respect to the
following: maintaining attention for a two hour segment; sustaining an ordinary routine without
special supervision; accepting instructions and responding appropriately to criticism from
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supervisors; getting along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes; and dealing with normal work-related stress. Id. at 811. He
opined Plaintiff had no useful ability to maintain regular attendance and be punctual within
customary tolerances or to complete a normal workday or workweek without interruption from
psychologically based symptoms. Id.
Drs. Antoinette Wall and Anthony G. Carraway, employed through the state Disability
Determination Services, assessed Plaintiff via consultative exams in July 2011. Dr. Wall (general
practitioner) focused her exam primarily on Plaintiff’s physical health; she noted that Plaintiff
had normal ranges of motion and grip strength and took note of Plaintiff’s medical history,
medications, and current complaints of bipolar disorder, substance abuse, hypertension, gouty
arthritis, and back pain. Tr. at 475. Dr. Carraway (psychiatrist and neurologist) observed that
Plaintiff had normal speech, good eye contact, logical thoughts, and average intellectual
functioning. Id. at 477-80. He also opined that Plaintiff had mild impairment in the following:
short-term memory, attention and concentration, social and interpersonal functioning, stress
tolerance, and his ability to understand, retain, and perform simple instructions. Id.
III.
STANDARD OF REVIEW
The only issues on review are whether the Commissioner applied the correct legal standards
and whether the Commissioner’s decision is supported by substantial evidence. Richardson v.
Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Review by a federal court is not de novo, Smith v. Schwieker, 795 F.2d 343, 345 (4th Cir. 1986);
rather, inquiry is limited to whether there was “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401 (internal citations
omitted). Even if the undersigned were to find that a preponderance of the evidence weighed
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against the Commissioner’s decision, the Commissioner’s decision would have to be affirmed if
supported by substantial evidence. Hays, 907 F.2d at 1456.
When considering cross-motions for summary judgment, the court “examines each motion
separately, employing the Rule 56(c) standard.” Desmond v. PNGI Charles Town Gaming,
L.L.C., 630 F.3d 351 (4th Cir.2011); Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)
(the Court reviews each motion separately on its own merits in order to “determine whether
either party deserves judgment as a matter of law”) (internal citations omitted).
IV.
SUBSTANTIAL EVIDENCE ANALYSIS
A. Introduction
The court has read the transcript of Plaintiff’s administrative hearing, closely considered the
decision of the ALJ in light of the record, and reviewed the extensive exhibits contained in the
administrative record. The issue is not whether a court might have reached a different
conclusion had it been presented with the same testimony and evidentiary materials, but whether
the decision of the administrative law judge is supported by substantial evidence. The court
finds that the final decision is not supported by substantial evidence.
B. Sequential Evaluation
An individual is considered disabled for the purposes of disability benefits if he is unable “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.” 42 U.S.C.A. § 423(d)(1)(A).
A five-step process, known as “sequential” review, is used by the Commissioner in determining
whether a Social Security claimant is disabled. The Commissioner evaluates a disability claim
under Title II pursuant to the following five-step analysis:
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a.
An individual who is working and engaging in substantial gainful activity will not
be found to be “disabled” regardless of medical findings;
b.
An individual who does not have a “severe impairment” will not be found to be
disabled;
c.
If an individual is not working and is suffering from a severe impairment that
meets the durational requirement and that “meets or equals a listed impairment in
Appendix 1” of Subpart P of Regulations No. 4, a finding of “disabled” will be
made without consideration of vocational factors;
d.
If, upon determining residual functional capacity, the Commissioner finds that an
individual is capable of performing work he or she has done in the past, a finding
of “not disabled” must be made;
e.
If an individual’s residual functional capacity precludes the performance of past
work, other factors including age, education, and past work experience, must be
considered to determine if other work can be performed.
20 C.F.R. § 404.1520(b) - (f). The burden of proof and production during the first four steps of
the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.1995). At the fifth
step, the burden shifts to the Commissioner to show that other work exists in the national
economy that the claimant can perform. Id.
C. The Administrative Decision
With an alleged onset date of December 31, 2008, the issue before the ALJ was whether
Plaintiff was disabled between that date through the date of decision, July 17, 2012. At the first
step, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the
alleged onset date. At step two, the ALJ found that Plaintiff’s conditions of chronic low back
pain, herniated disc in his lower back, gouty arthritis, affective mood disorder, and anxiety
disorder all amounted to severe impairments. At step three, the ALJ determined Plaintiff had no
impairment or combination of impairments that met or medically equaled any impairments in the
regulatory listings. In assessing Plaintiff’s mental impairments at the third step, the ALJ
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concluded that Plaintiff suffered from a mild restriction in his activities of daily living, and
moderate difficulties with social functioning, concentration, persistence, and pace. The ALJ
further found that Plaintiff had experienced one to two episodes of decompensation of extended
duration, but that they did not qualify as “repeated” episodes under the governing regulations.
The ALJ concluded that Plaintiff’s mental impairments did not meet the criteria listings under
the governing regulations. See Tr. at 18-19, referring to 20 C.F.R. § 404, app. 1 Listings 12.04,
12.06, 12.09.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) and found he
could perform work of a medium exertion level, limited to simple, routine, repetitive tasks in a
work environment that allows for “frequent positional changes.” Tr. at 19. The ALJ noted that
Plaintiff is better suited for such tasks that involve “working…with things rather than people and
no interaction with the public.” Id. At step four, the ALJ concluded that Plaintiff was able to
perform past relevant work as a stock clerk, but unable to perform past work as a cook or floor
coverer. Id. at 25. The ALJ proceeded to step five in the alternative and found that considering
Plaintiff’s age, education, work experience, and RFC, other jobs existed in the national economy
that Plaintiff would be able to perform. Id. at 26. The vocational expert who testified at
Plaintiff’s hearing stated that given these factors, Plaintiff was capable of performing several
simple, medium-level occupations, including janitor, groundskeeper, and kitchen helper. Id.
Accordingly, the ALJ found Plaintiff not disabled. Id. at 26. It is also significant in the context of
this review of the ALJ’s determination that, at the hearing, the vocational expert testified that if
the non-exertional limitations provided by Drs. Bird and Holmes in their mental functioning
capacity questionnaires were accurate, there would be no jobs available to Plaintiff. Id. at 50.
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Similarly, she testified that there would be no jobs available to Plaintiff if all of his testimony at
his hearing was accurate and true. Id. at 48.
D. Discussion
1. Plaintiff’s Assignments of Error
Plaintiff seeks review of the Commissioner’s final administrative decision, alleging:
i.
The RFC is unsupported by substantial evidence because the ALJ erred in
according inadequate weight to the opinions from treating psychiatrists Drs. Bird
and Holmes;
ii.
The ALJ’s credibility determination is unsupported by substantial evidence
because the ALJ erred in evaluating Plaintiff’s credibility; and
iii.
The ALJ’s findings at Steps 4 and 5 are unsupported by substantial evidence
because the ALJ erred in relying on vocational expert testimony elicited in
response to an incomplete hypothetical question.
Plaintiff’s assignments of error will be discussed seriatim.
2. First Assignment of Error: Weight to Opinion Evidence
Plaintiff first alleges that the ALJ erred in according inadequate weight to the opinions
from treating psychiatrists Drs. Bird and Holmes and that as a result, the RFC is unsupported by
substantial evidence.
An ALJ must evaluate every medical opinion in the record. See 20 C.F.R. § 404.1527(c).
Under the governing regulations, “a treating physician's opinion on the nature and severity of the
claimed impairment is entitled to controlling weight if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (citing
20 C.F.R § 416.927). A “treating physician” is a physician who has observed the Plaintiff’s
condition over a prolonged period of time. Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir.
1983). “Although the treating physician rule generally requires a court to accord greater weight
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to the testimony of a treating physician … The ALJ may choose to give less weight to the
testimony of a treating physician if there is persuasive contrary evidence.” Hunter v. Sullivan,
993 F.2d 31, 35 (4th Cir. 1992), as amended (May 5, 1993) (internal citations omitted). If a
treating physician’s opinion is not given controlling weight, the ALJ is obligated to evaluate and
weigh the medical opinion pursuant to the following factors: “(1) whether the physician has
examined the applicant, (2) the treatment relationship between the physician and the applicant,
(3) the supportability of the physician's opinion, (4) the consistency of the opinion with the
record, and (5) whether the physician is a specialist.” Hines v. Barnhart, 453 F.3d 559, 563 (4th
Cir. 2006) (quoting Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir .2005) (citing 20 C.F.R. §
404.1527 (2005))).
If the ALJ does not accord controlling weight to a treating source’s opinion, he must
“give good reasons” for doing so. 20 C.F.R. §§ 404.1527(d)(2), 416.927(c)(1)(2). The ALJ’s
explanation of these “good reasons” “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.” SSR 96-2P, 1996 WL
374188, at *5 (July 2, 1996). “[F]ederal courts have remanded decisions of the Commissioner
when they fail to articulate ‘good reasons’ for discrediting the opinion of a treating source, as
expressly required by 20 C.F.R. § 404.1527(d)(2).” Newhart v. Colvin, 6:13-CV-01606, 2014
WL 1330929 (S.D.W. Va. Mar. 31, 2014). See also Halloran v. Barnhart, 362 F.3d 28, 33 (2d
Cir. 2004) (“We do not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physicians opinion and we will continue remanding
when we encounter opinions from ALJ's that do not comprehensively set forth reasons for the
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weight assigned to a treating physician's opinion.”); Slayton v. Apfel, 175 F.3d 1016, at *3 (4th
Cir.1999) (remand appropriate where “ALJ did not indicate the weight given to the findings of
each of the treating physicians”); Stroup v. Apfel, 205 F.3d 1334, at *6 (4th Cir. 2000)
(“Because the ALJ did not explain adequately why the reports of [other physicians] were a
sufficient basis for rejecting [the treating physician]'s opinion, we cannot determine whether the
ALJ properly rejected [the] treating physician's opinion ‘as inconsistent with the other substantial
evidence in the record.’ We therefore must remand the case to the ALJ for a new hearing.’”
(quoting 20 C.F.R. § 404.1527)).
Here, the ALJ gave little weight to the medical opinions of Plaintiff’s treating physicians,
who opined that Plaintiff had extreme limitations on his ability to perform work activity. The
ALJ gave “great weight” to the consultative examiners employed by the State Disability
Determination Services, who opined that Plaintiff’s limitations were less severe.
The court first addresses the opinions of the treating physicians. Dr. Holmes provided
mental health treatment for Plaintiff from February 2010 through the fall of 2011. Dr. Bird
provided mental health treatment for Plaintiff from August 2011 through the date of decision in
July 2012. Both doctors saw Plaintiff routinely (about once a month). Because they observed
Plaintiff’s condition over prolonged periods of time, Drs. Holmes and Bird are “treating
physicians” under the governing regulations. Both doctors diagnosed Plaintiff with bipolar I
disorder and alcohol dependence. Both doctors opined that Plaintiff was limited in his ability to
perform unskilled work, unable to maintain socially appropriate behavior in the workplace, and
would be unable to meet competitive standards in many areas of unskilled work. Tr. at 802-06;
809-13. Drs. Bird and Holmes did, however, offer different opinions as to whether Plaintiff
would be able to manage benefits in his own interest Id. at 806, 813.
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As noted above, an ALJ may give less weight to the testimony of a treating physician if
persuasive contrary evidence exists. Here, the ALJ gave less weight to the treating physicians but
failed to state why other evidence in the record was more persuasive. In explaining why he gave
little weight to the opinions of Drs. Bird and Holmes, the ALJ stated, “their opinions are not
consistent with other medical evidence of record [sic] even their own treatment records.” Id. at
23. Evaluating the consistency of evidence is an appropriate factor to consider when giving less
weight to a treating physician. See Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (citing 20
C.F.R § 416.927). The reasons that the ALJ offers in support of his conclusion of inconsistency
between the treating physicians’ opinions and other substantial evidence of record include: 1) Dr.
Bird stated that Plaintiff was in inpatient care due to his severe mental condition,1 but the
medical record indicated that the majority of the admissions were due to alcohol abuse; 2) Drs.
Bird and Holmes reached different conclusions about whether Plaintiff would be able to manage
his own finances; 3) Drs. Bird and Holmes placed extreme limitations on claimant’s ability to
work, but the claimant reported that he would like to start attending classes, obtain a degree, and
get his driver’s license. 4) Dr. Bird stated that Plaintiff could not always afford his medications,
but Plaintiff often had enough funds to purchase alcohol and cigarettes, and 5) “if [Plaintiff]
were as limited as Dr. Bird and Dr. Holmes opined[,] he would be unable to live alone.” Tr. at
23-24.
In reviewing these proffered reasons for affording the treating physicians’ opinions less
weight, the court notes that only the first reason points to other medical evidence in the record.
Moreover, the record indicates that Plaintiff was hospitalized on several occasions due to both
1
The court notes that the ALJ improperly attributed statements regarding Plaintiff’s inpatient treatment to Dr. Bird.
Treating physician Dr. Holmes, in fact, made the relevant statement. Tr. at 809. While the ALJ’s factual analysis
was not likely altered due to this mistake, the court finds the error troubling in that it indicates a lack of attention to
medical evidence and the record as a whole.
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substance abuse and mental instability. See, e.g., Id. at 229 (inpatient hospital record stating that
Plaintiff had been drinking heavily and made suicidal threats, reported manic behavior); Id. at
235 (Plaintiff’s chief complaint at inpatient admission was suicidal ideation). Thus, Dr. Holmes’
statement that Plaintiff received inpatient care for his mental condition is, in fact, consistent with
the record. The other four reasons offered as inconsistencies do not reference medical evidence
or explain why the allegedly inconsistent statements are overcome by other, more persuasive
substantial evidence in the record. At best, the reasons cited are factual discrepancies which,
while worthy of note, are not so conflicting as to render the treating physicians’ opinions
inaccurate or unreliable without further explanation. The court finds that the ALJ has not
provided “good reasons” for discounting the opinions of the treating physicians. See 20 C.F.R. §
416.927(c)(1)(2).
Moreover, the ALJ made no mention of any other applicable factor relevant to a
determination of how much weight to afford the treating physicians. Here, the treating physicians
were specialists in the field of psychiatry who both examined Plaintiff several times and had a
relatively well-developed treatment relationship with him. Aside from the reasons cited above,
the ALJ made no findings about the supportability of the physicians’ opinions or explained how
other medical evidence in the record contradicted their findings. See Hines v. Barnhart, 453 F.3d
559, 563 (4th Cir. 2006). Without explanation, the ALJ implied that the treating physicians
fabricated their reports of Plaintiff’s mental condition out of sympathy or in order to avoid
doctor/patient tension. Tr. at 24. The ALJ did not, however cite any evidence even remotely
suggesting such impropriety. The court finds that the ALJ failed to properly explain his rationale
for declining to give the treating physicians’ opinions controlling weight, as required under
governing standards.
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The court next addresses the medical opinions of consultative examiners Drs. Wall and
Carraway. “Unless a treating source's opinion is given controlling weight, the administrative law
judge must explain in the decision the weight given to the opinions of a State agency medical or
psychological consultant or other program physician, psychologist, or other medical specialist, as
the administrative law judge must do for any opinions from treating sources, nontreating sources,
and other nonexamining sources who do not work for [the Commissioner].” 20 C.F.R. §
404.1527(e)(2)(ii). In explaining why he gave great weight to consultative examiners Drs. Wall
and Carraway, the ALJ simply stated:
Medical [sic] acceptable clinical findings and laboratory diagnostic techniques
support Dr. Wall’s opinion in Exhibit 13F and the undersigned gave it great
weight.
Medical signs and findings support Dr. Carraway’s opinion in 14F and it is
consistent with other medical evidence of record. Therefore, the undersigned
[ALJ] gave Dr. Carraway’s opinion great weight.
Tr. at 24. Without further explanation, the court finds such statements conclusory and unhelpful.
It is a reviewing court’s job to ensure that the ALJ based his decision on substantial evidence.
A necessary predicate to engaging in substantial evidence review is a record of
the basis for the ALJ's ruling. The record should include a discussion of which
evidence the ALJ found credible and why, and specific application of the
pertinent legal requirements to the record evidence. If the reviewing court has no
way of evaluating the basis for the ALJ's decision, then the proper course, except
in rare circumstances, is to remand to the agency for additional investigation or
explanation.
Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (internal citations and quotations omitted).
Here, the ALJ has not offered sufficient reasoning to support his conclusions. The ALJ
summarizes facts from the record, cites the applicable legal standards, but then analyzes the facts
under the legal standards in a manner that makes it difficult for the court to ascertain how the
ALJ arrived at his conclusion. In essence, the ALJ decision makes all the right statements under
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the applicable standards in finding Plaintiff disabled, but fails to clearly state how he formulated
this determination given the facts in the record. Without further explanation of why the ALJ
discredited the medical evidence of Plaintiff’s treating physicians and assigned greater weight to
the consultative examiners, the court cannot conduct a meaningful review of Plaintiff’s claim
and cannot find that the ALJ’s decision was based on substantial evidence.
The court agrees with Plaintiff’s first assignment of error and will remand this matter to
the ALJ for further explanation on the issue of evaluating opinion evidence of Plaintiff’s mental
and physical conditions relevant to disability.
3. Second Assignment of Error: Plaintiff’s Credibility
Plaintiff alleges that in formulating the RFC, the ALJ erred in evaluating Plaintiff’s
credibility and that his credibility determination is unsupported by substantial evidence.
The ALJ is solely responsible for determining the RFC of a claimant. 20 C.F.R. §
404.1546(c). In determining RFC, the ALJ must consider the functional limitations and
restrictions resulting from the claimant’s medically determinable impairments. S.S.R. 96-8p.
Inasmuch as RFC is determined at the fourth step of the sequential evaluation process, the
burden is on the claimant to establish that he or she suffers from a physical or mental impairment
which limits functional capacity. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
In reviewing Plaintiff’s claim regarding the ALJ’s credibility determination, the court
notes at the outset that because the ALJ “had the opportunity to observe the demeanor and to
determine the credibility of the claimant, the ALJ's observations concerning these questions are
to be given great weight.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). The correct
standard and method for evaluating claims of pain and other subjective symptoms in the Fourth
Circuit has developed from the Court of Appeals’ decision in Hyatt v. Sullivan, 899 F.2d 329
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(4th Cir. 1990) (Hyatt III), which held that “[b]ecause pain is not readily susceptible of objective
proof…the absence of objective medical evidence of the intensity, severity, degree or functional
effect of pain is not determinative.” Id., at 336. A two-step process for evaluating such a
subjective complaint was developed by the Court of Appeals for the Fourth Circuit in Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). This two-step process for evaluating subjective
complaints corresponds with the Commissioner’s relevant rulings and regulations. See 20 C.F.R
§ 404.1529; SSR 96-7p.2
The first step requires the ALJ to determine whether there is “objective medical evidence
showing the existence of a medical impairment which could reasonably be expected to produce
the actual pain, in the amount and degree, alleged by the claimant.” Craig, 76 F.3d at 594. If the
ALJ finds such an impairment, he must then proceed to the second step and assess “the intensity
and persistence of the claimant's pain, and the extent to which it affects [his] ability to work.” Id.
at 595; see also 20 C.F.R. §§ 416.929(c)(1), 404.1529(c)(1); SSR 96-7p. The ALJ must consider
the following: (1) a claimant’s testimony and other statements concerning pain or other
subjective complaints; (2) claimant’s medical history and laboratory findings; (3) any objective
medical evidence of pain; and (4) any other evidence relevant to the severity of the impairment.
Craig, 76 F.3d at 595; 20 C.F.R. § 404. 1529(c); SSR 96-7p. The term “other relevant evidence”
includes: a claimant’s activities of daily living; the location, duration, frequency and intensity of
their pain or other symptoms; precipitating and aggravating factors; the type, dosage,
effectiveness and side effects of medications taken to alleviate their pain and other symptoms;
2
“The purpose of this Ruling is to clarify when the evaluation of symptoms, including pain, under 20 CFR
404.1529 and 416.929 requires a finding about the credibility of an individual’s statements about pain or other
symptom(s) and its functional effects; to explain the factors to be considered in assessing the credibility of the
individual’s statements about symptoms; and to state the importance of explaining the reasons for the finding about
the credibility of the individual’s statements in the disability determination or decision.” S.S.R. 96-7p (statement of
purpose).
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treatment, other than medication, received; and any other measures used to relieve their alleged
pain and other symptoms. Craig, 76 F.3d at 595. If the ALJ does not find a claimant's statements
to be credible, the ALJ must provide specific reasons supported by the evidence. 20 C.F.R. §
404.1529(c)(4); SSR 96–7P; see also Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir.1985)
(“credibility determinations…should refer specifically to the evidence informing the ALJ's
conclusion”). “This duty of explanation is always an important aspect of the administrative
charge, and it is especially crucial in evaluating pain, in part because the judgment is often a
difficult one, and in part because the ALJ is somewhat constricted in choosing a decisional
process.” Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (internal citations omitted).
Here, at the first step of Craig, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause his alleged symptoms. Tr. at 21. At the
second step, the ALJ evaluated the intensity and persistence of Plaintiff’s pain and the extent to
which it affected his ability to work. First, the ALJ discussed Plaintiff’s testimony, his statements
concerning pain levels, and other subjective complaints. See Tr. at 20. The ALJ noted, inter alia,
Plaintiff’s assertions about his educational background, work experience, history of mental
health treatment, medications for his mental health conditions, herniated disc in his back,
diagnosed bipolar disorder, former alcohol dependence, former homelessness, difficulty
sleeping, fluctuating energy levels, diagnosed ADHD, difficulty working with other people and
following instructions, and side effects from his medications. Id. In assessing Plaintiff’s medical
history and objective medical evidence of pain, the ALJ discussed Plaintiff’s various ailments, as
well as the doctor visits and treatment that he received for each. Id. at 20-21. He noted, inter alia,
Plaintiff’s complaints of gouty arthritis and pain in his left foot, back pain, arthritic condition,
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alcohol dependence, insomnia, and his mental health history. Id. at 21. The ALJ discussed the
medical evidence submitted by Drs. Bird, Holmes, Carraway, and Wall. Id. at 21-22.
In considering other evidence relevant to the severity of Plaintiff’s mental and physical
impairments, the ALJ discussed Plaintiff’s activities of daily living (Id. at 18, 20). He noted that
Plaintiff can care for his personal needs, use food stamps to purchase groceries, take care of his
pet cat, wash clothes, and converse with his neighbors. Id. The ALJ also noted the location,
duration, frequency, and intensity of his pain and other symptoms, describing Plaintiff’s reports
of pain and discomfort to the various medical professionals from which Plaintiff sought
treatment between the spring of 2009 and the summer of 2011. Id. at 21-23. In discussing these
incidents of treatment in the medical record, the ALJ discussed aggravating factors of Plaintiff’s
condition, the type, dosage, effectiveness and side effects of his medications; and other treatment
measures. Id. at 20-23.
In light of his assessment of these factors, the ALJ determined that Plaintiff’s “statements
concerning the intensity, persistence, and limiting effects of his symptoms were not credible to
the extent that they are inconsistent with [the ALJ’s RFC].” Id. at 21. As noted above, if the ALJ
does not find a claimant's statements to be credible, the ALJ must provide specific reasons
supported by the evidence. 20 C.F.R. § 404.1529(c)(4); SSR 96–7P; see also Hammond v.
Heckler, 765 F.2d 424, 426 (4th Cir.1985). Here, the ALJ stated that Plaintiff “alleges pain and
discomfort….Although he has an objectively identifiable impairment that can reasonably cause
pain, the objective evidence does not substantiate pain at a level which would preclude a full
range of work.” Tr. at 21.
The ALJ’s decision does not clearly explain his particular reasons for finding Plaintiff’s
statements not to be fully credible. It is not obvious to the court what particular aspects of
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Plaintiff’s statements and/or testimony the ALJ found to conflict with the medical record as a
whole. In reviewing the decision, the ALJ’s credibility determination seems to be at least
partially based on Plaintiff’s reports of daily activities. Such a “consideration of daily activities is
precisely the type of evaluation required under current case law” for credibility determinations.
Pruitt v. Colvin, 5:13-CV-00124-MOC, 2014 WL 1713832 (W.D.N.C. Apr. 30, 2014) (citing
Mickles v. Shalala, 29 F.3d 918 (4th Cir. 1994)). However, the ALJ fails to articulate which
particular reports of Plaintiff’s daily activities conflict with his complaints of disabling mental
and physical conditions. The ALJ decision simply states:
Although the claimant has described daily activities which are fairly limited, two
factors weigh against considering these allegations to be strong evidence in favor
of finding the claimant disabled. First, allegedly limited daily activities cannot be
objectively verified with any reasonable degree of certainty. Secondly, even if the
claimant’s daily activities are truly as limited as alleged, it is difficult to attribute
that degree of limitation to the claimant’s medical condition, as opposed to other
reasons, in view of the relatively weak medical evidence and other factors
discussed in this decision. Overall, the claimant’s reported limited daily activities
are considered to be outweighed by other factors discussed in this decision.
Id. at 23. Notably, the Commissioner’s motion failed to articulate how the ALJ satisfied the duty
of explanation in his credibility determination. The Commissioner simply argues that the ALJ
“carefully explained” why Plaintiff’s statements were not credible and refers the court to the
entire six-page section of the ALJ decision on RFC without citing any examples.
The court finds that the ALJ has not satisfied his duty of explanation on the credibility
determination. The ALJ first discredits Plaintiff’s reports of daily activities without explanation,
despite the extensive record documenting the ACTT team’s weekly interactions with Plaintiff,
medical records indicating Plaintiff’s reports of daily activities to his psychologists and other
doctors over the past several years, and Plaintiff’s oral testimony before the ALJ at his hearing.
The ALJ’s second proffered explanation is nothing more than a vague reference to all “other
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factors discussed in this decision.” Upon review, it is not apparent to this court what factors the
ALJ is referencing.
The court agrees with Plaintiff’s second assignment of error and will remand this matter
to the ALJ for further explanation on the issue of Plaintiff’s credibility.
4. Third Assignment of Error: Vocational Expert Testimony
Finally, Plaintiff argues that the ALJ’s step four and step five determinations were not
supported by substantial evidence because they were based on an improper hypothetical question
posed to the vocational expert. Specifically, Plaintiff asserts that the ALJ’s errors in discounting
the limitations opined by Drs. Holmes and Bird and improper credibility determination resulted
in an incomplete hypothetical to the vocational expert. “In order for a vocational expert's opinion
to be relevant or helpful, it must be based upon a consideration of all other evidence in the
record, and it must be in response to proper hypothetical questions which fairly set out all of
claimant's impairments.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (internal citations
omitted).
Here, the ALJ posed several hypothetical questions to the vocational expert based on the
record and Plaintiff’s testimony, which included questions with a range of work levels. Because
the court has found that several of the ALJ’s determinations that formed the basis for the
hypothetical question posed to the vocational expert were not supported by substantial evidence,
it will remand this matter to the ALJ. Thus, on remand, the ALJ will be required to consider all
of Plaintiff’s evidence and arguments anew (including any additional evidence) and explicitly
consider the matters of due consideration to the opinions of the treating physicians and Plaintiff’s
credibility. If, after re-assessing the opinion evidence and credibility determination as instructed
above, the ALJ develops a new RFC, he should move to the fifth step and determine whether
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Plaintiff is able to perform work existing in substantial numbers in the national and local
economies.
V.
CONCLUSION
The court has carefully reviewed the decision of the ALJ, the transcript of proceedings,
Plaintiff’s motion and brief, the Commissioner’s responsive pleading, and Plaintiff’s
assignments of error. Review of the entire record reveals that the decision of the ALJ is not
supported by substantial evidence. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus, Plaintiff’s Motion for Summary Judgment
will be granted, the Commissioner’s Motion for Summary Judgment will be denied, and the
decision of the Commissioner will be remanded for further proceedings not inconsistent with this
Order. While the court will not direct the Commissioner to assign this claim to a different ALJ
(inasmuch as the court is still confident that this ALJ can fairly hear Plaintiff’s claims), the court
will require the Commissioner to notify this court in the event a civil action is filed after remand
so that this court can conduct any subsequent review.
ORDER
IT IS, THEREFORE, ORDERED that 1) the Plaintiff’s Motion for Summary Judgment
(#9) is GRANTED based on the ALJ’s failure to properly evaluate the opinion evidence and
fully explain his credibility determination; 2) the Commissioner’s Motion for Summary
Judgment (#13) is DENIED without prejudice; 3) the decision of the Commissioner, denying the
relief sought by Plaintiff, is VACATED and this action is REMANDED to the Commissioner to
conduct a new hearing and consider, along with all other evidence of record, the opinions and
records of Plaintiff’s treating physicians and, if the ALJ chooses not to rely on or credit such
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treating physician’s opinion, the ALJ shall provide specific, legitimate reasons for doing so, all
pursuant to Sentence Four of 42 U.S.C. § 405(g); and 4) this action is DISMISSED.
The Clerk of Court shall enter a Judgment pursuant to Rule 58 of the Federal Rules of
Civil Procedure consistent with this Memorandum of Decision and Order.
Signed: October 28, 2014
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