Prater v. Colvin
Filing
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ORDER granting Pltf's 11 Motion for Summary Judgment; denying Deft's 12 Motion for Summary Judgment; vacating the ALJ's decision and remanding the case to the Commissioner for further proceedings consistent with this ORDER. Signed by Chief Judge Frank D. Whitney on 6/27/2017. (ejb) (Main Document 15 replaced on 6/27/2017 with PDF reflecting correct Division "Asheville" in document heading) (ejb). NEF Regenerated.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:16-CV-00079-FDW
MICHAEL L. PRATER,
Plaintiffs,
vs.
NANCY A. BERRYHILL,1 Acting
Commissioner of the Social Security
Administration
Defendant.
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ORDER
THIS MATTER is before the Court on Plaintiff Michael Lance Prater’s Motion for
Summary Judgment (Doc. No. 11), filed March 6, 2017, and Defendant Acting Commissioner of
Social Security Nancy A. Berryhill’s Motion for Summary Judgment (Doc. No. 12), filed May 3,
2017. Plaintiff seeks judicial review of an unfavorable administrative decision on his application
for Disability Insurance Benefits.
Having reviewed and considered the written arguments, administrative record, and
applicable authority, and for the reasons set forth below, the Plaintiff’s Motion for Summary
Judgment is GRANTED and Defendant’s Motion is DENIED. The Court VACATES the decision
of the Administrative Law Judge (“ALJ”) and REMANDS the case to the Commissioner for
further proceedings.
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Pursuant to Fed. R. Civ. Pro. 25(d) Nancy A. Berryhill has been substituted for Carolyn W. Colvin as defendant in
this suit.
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I.
BACKGROUND
Michael L. Prater (“Plaintiff”) filed for a period of Disability Benefits on May 3, 2012,
under Title II and Title XVIII Part A, initially alleging a disability onset date of May 31, 2011,
(later amended to November 24, 2012) due to Post Traumatic Stress Disorder (“PTSD”), Anxiety,
Obsessive Compulsive Disorder (“OCD”), high blood pressure, and sleep problems. (Tr. 245). At
the time of the application, Plaintiff was 57 years old. Plaintiff submitted evidence of his disability
from Sonora Behavioral Healthcare, Inc.; Asheville Veterans Affairs Medical Center; and
Olympus Health North Carolina, LLC.; including records from psychologist Dr. Barry Rand,
psychiatrist Dr. Susan Glover, and therapist Dr. E. Lynn Marlow. (Tr. 25-28). These records were
reviewed by Social Security Administration’s (“SSA”) medical consultants.
(Tr. 138-39).
Plaintiff’s application was initially denied and then again upon his request for reconsideration.
(Tr. 138, 143). Plaintiff then filed a written request for a hearing before an Administrative Law
Judge on April 2, 2013, pursuant to 20 C.F.R. 404.929. (Tr. 117).
Administrative Law Judge Sherman Schwartzberg (“the ALJ”) held a hearing on January
27, 2014. (Tr. 152). Before the ALJ issued his decision, the Department of Veterans Affairs
(“VA”) found Plaintiff completely disabled due to service-connected disabilities on February 11,
2014. (Tr. 775). Then, on March 7, 2014, the ALJ denied Plaintiff’s application for disability.
(Tr. 129). Plaintiff appealed the ALJ’s decision to the Appeals Council and the case was remanded
to explain, inter alia, why the ALJ assigned “little weight” to the VA’s determination and other
medical source opinions and to resolve conflicts in the Vocational Expert’s testimony. (Tr. 13436). The ALJ reconsidered the claim and issued a second decision denying Plaintiff’s application
on September 16, 2015. (Tr. 15-33). The Appeals Council denied further administrative review
(Tr. 1), thereby rendering the ALJ’s decision the final decision of the Commissioner of Social
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Security. Plaintiff filed timely review to this court pursuant to on March 24, 2016, (Doc. No. 1),
and the parties’ Motions for Summary Judgment are now ripe for review pursuant to 42 U.S.C. §
405(g).
II.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this court is authorized to review the final decision of the
Commissioner of Social Security to determine that (1) the Commissioner’s decision is supported
by substantial evidence, Richardson v. Perales, 402 U.S. 389, 401 (1971), and (2) that the
Commissioner applied the correct legal standard. Hays v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)
(per curiam). The District Court does not review a final decision de novo, Smith v. Schweiker,
795 F.2d 343, 345 (4th Cir. 1986), and must uphold the decision if it is supported by substantial
evidence. 42 U.S.C. § 405(g) ([T]the findings of the Commissioner … as to any fact, if supported
by substantial evidence, shall be conclusive.”); Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir.
1982).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion, which comprises more than a mere scintilla of evidence but may
be less than a preponderance. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting
Richardson 402 U.S. at 401). Under this substantial evidence review, the reviewing court does not
re-weigh conflicting evidence, determine credibility, or substitute its judgment for that of the
Commissioner. Hays, 907 F.2d at 1456. The ALJ, not the Court, has the ultimate responsibility for
weighing the evidence and resolving conflicts. Id.
III.
ANALYSIS
The issue before the ALJ was whether Plaintiff was disabled under the Social Security Act
from November 24, 2012, to the date of the ALJ’s decision. Disability is defined by 42 U.S.C. §
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301 as “an 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.” The SSA
requires an ALJ to follow a five-step process to make this determination.
20 C.F.R. §
404.1520(a)(1). If the claimant is found to be disabled or not disabled at any step in the process,
the inquiry ends and the adjudicator does not need to proceed further in the evaluation process.
In step 1, an ALJ must determine whether the claimant is engaged in a substantial gainful
activity. In step 2, the ALJ determines whether the claimant has a severe medically determinable
impairment or a combination of impairments. In step 3, an ALJ will find whether the claimant’s
impairments meets or medically equals one of the “paragraph B or C” listings in 20 C.F.R. Part
404, Subpart P, Appendix 1. If an ALJ determines that the impairments are not so severe, the ALJ
will pause to determine the claimant’s Residual Functional Capacity (“RFC”). An ALJ will then
use the RFC finding in step 4 to examine whether the claimant can perform the requirements of
his past relevant work or, in step 5, whether the claimant can do any other work, considering the
claimants RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i-v).
In this case, the ALJ determined that Plaintiff was not disabled because his impairments
did not meet or equal the “paragraph B or C” criteria in step 3 and that he could perform the
requirements of past relevant work and other jobs available in the national economy in steps 4 and
5. (Tr. 31-33). On appeal, Plaintiff alleges the ALJ committed four errors in the evaluation of
Plaintiff’s RFC and a further errors in the ALJ’s application of the RFC in steps 4 and 5. This
Court agrees with Plaintiff that the ALJ committed error warranting remand because the failed to
explain why Plaintiff’s moderate limitation in concentration, persistence, and pace in step 3 was
not incorporated into the ALJ’s finding of Plaintiff’s RFC. This Court finds Plaintiff’s three
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additional assignments of error in the RFC analysis unavailing: that the ALJ improperly assigned
weight to Plaintiff’s treating mental health examiners’ opinions, the VA determination, and some
of Plaintiff’s Global Assessment of Functioning scores. Finally, Plaintiff also alleges that the ALJ
failed to resolve conflicts between the Vocational Expert’s testimony and the Dictionary of
Occupational Titles in steps 4 and 5. However, because the Court finds that there was an error in
the RFC finding, which provides the basis of the VE’s testimony in steps 4 and 5, this Court will
reserve judgment on this final argument asserted by Plaintiff. (Tr. 20-21).
A.
The ALJ’s Analysis of Plaintiff’s Residual Functional Capacity
Plaintiff argues this case should be remanded because the ALJ failed to explain why
Plaintiff’s moderate limitation in the ability to maintain concentration, persistence, and pace in
step 3 was not incorporated into Plaintiff’s RFC. The Commissioner argues that the ALJ’s
decision accounted for Plaintiff’s limitation by including Plaintiff’s social limitations.
In step 3 of an ALJ’s analysis, the functional limitations of mental impairments are assessed
within four broad categories: the ability to understand, remember, or apply information; to work
with others; to concentrate, persist, or maintain pace; and to adapt or manage oneself. 20 C.F.R.
§ 404.1520a(c)(3). The ability to work with others refers to the ability to relate to and work with
supervisors, co-workers, and the public. The ability to concentrate, persist, or maintain pace refers
to the abilities to focus attention on work activities and stay on task at a sustained rate. 20 C.F.R.
pt. 404, subpt. P, app. 1, § 404 12.00(E)(1-2). A limitation is assessed on a five-point scale: none,
mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). If a claimant’s limitations in
these four broad categories do not meet or equal those listed in the “paragraph B or C” listings, the
ALJ will determine the claimant’s Residual Functional Capacity. 20 C.F.R. 404.1520(a).
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When determining a claimant’s RFC, an ALJ reviews all the evidence of record and
performs a detailed analysis by itemizing the various functions contained in the broad categories
found in the step 3 analysis. SSR 96-8p, 1996 WL 34184 at *4 (July 2, 1996). An ALJ concludes
the analysis by issuing a finding of the claimant’s RFC that describes the claimant’s physical and
mental capacities. The United States Court of Appeals for the Fourth Circuit has held that an RFC
does not inferentially incorporate a limited ability to concentrate, persist, or maintain pace if it
merely restricts the claimant RFC to “simple, routine, repetitive work.” Mascio v. Colvin 780 F.3d
632, 638 (4th Cir. 2015) (explaining ability to perform simple tasks differs from ability to stay on
task). While an ALJ may determine that an impairment in step 3 does not affect a claimant’s
ability to work (and thus, their RFC), such a determination must be explained. Id. (holding remand
necessary when ALJ found a limitation in concentration, persistence, or pace in step 3 but failed
to explain why it was not incorporated into claimant’s RFC).
In step 3 of this case, the ALJ found that Plaintiff has “moderate difficulties” in social
functioning and in concentrating, persisting, and maintaining pace but found that these limitations
were not as severe to meet or equal “paragraph B or C” criteria. (Tr. 22-23). However, in the
subsequent RFC analysis, the ALJ’s assessment of Plaintiff’s mental limitations is not so clear.
As for Plaintiff’s ability to work with others, the ALJ concurred with Dr. Lynn Marlow, Plaintiff’s
treating therapist, finding that Plaintiff was moderately limited in his ability to function in most
stress situations and engage in most interpersonal relations. (Tr. 30). By contrast, the record of
ALJ’s finding of Plaintiff’s ability to concentrate, persist, and maintain pace is ambiguous. While
the ALJ found that Dr. Marlow’s assessment of Plaintiff’s ability to maintain pace was not
consistent with the record, the ALJ only disagreed with the severity of Dr. Marlow’s opinion that
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Plaintiff has a marked limitation in his ability to concentrate. Id. (stating, “claimant is not as
limited as Dr. Marlow determined.”).
Nonetheless, at the conclusion of Plaintiff’s RFC assessment, the ALJ omits a limitation in
concentration, persistence and pace altogether, finding that Plaintiff’s RFC was only restricted to
“simple, routine, repetitive work; occasional contact with co-workers and supervisors; and no
contact with the public.” See Mascio, F.3d at 638 (holding that restrictions to “simple, routine,
repetitive work” does not account for limitations in concentration, persistence, and pace). (Tr. 31).
Plaintiff rightly argues that the decision must be remanded because, like in Mascio, there is
ambiguity in the ALJ’s reasoning in the RFC assessment. In Mascio, the court remanded a decision
when the ALJ’s conclusions did not explain conflicts with the evidence of record. Mascio, F.3d
at 637. Here, there is inconsistency in the ALJ’s conclusions, which, like in Mascio, frustrates the
Court’s ability to meaningfully review the record. Id. at 636.
The Commissioner cites three cases to argue that the ALJ satisfies Mascio and accounts
for Plaintiff’s limitation in concentration, persistence, and pace merely by incorporating`
Plaintiff’s social functioning limitations. (Doc. No. 13). However, the cases do not support the
Commissioner’s assertion. In each case, a district court held that an ALJ accounted for a claimant’s
moderate limitation to concentration, persistence, and pace with an RFC limitation relevant to the
ability of the claimant to focus attention on work activities and stay on task at a sustained rate. See
White v. Colvin, No. 1:14-CV-161-RLF, 2016 WL 1600313, at *7 (W.D.N.C. Apr. 21, 2016)
(reviewing limitation to “nonproduction pace”); Horning v. Colvin, 3:14-CV-722-RJC, 2016 WL
1123103, at *4 (W.D.N.C. Mar. 21, 2016) (reviewing limitation to “nonproduction pace with little
interaction with co-workers”); Taylor v. Colvin, 3:14-CV-00510-GCM, 2016 WL 1032345, at *7
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(W.D.N.C. Mar. 15, 2016) (reviewing limitation to a low production setting).
Thus, the
Commissioner’s assertion is without support.
In conclusion, the decision must be remanded because the ALJ erred by failing to explain
why Plaintiff’s moderate limitation in concentration, persistence, and pace in step 3 did not
translate into a limitation in Plaintiff’s RFC. The error is not harmless, as this potentially
incomplete RFC formed the basis of the hypothetical submitted to the VE, (Tr. 77), and VE
testimony based on incomplete hypotheticals may not provide basis for an ALJ’s disability
determination. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
B.
The ALJ’s Assignment of Weight in Determining Plaintiff’s RFC
In addition to the defect above, Plaintiff alleges three additional assignments of error in the
ALJ’s RFC analysis, which the Court now addresses since they relate to the same step in the ALJ’s
analysis. An ALJ’s RFC evaluation must be based on all of the relevant medical evidence in the
case record. SSR 96-8p, 1996 WL 374184 (July 2, 1996). In general, an ALJ’s assessment of the
weight to be accorded to a medical opinion source will not be disturbed by a reviewing court.
Dunn v. Colvin, 607 F. App’x 264, 267 (4th Cir. 2015). In each assignment of error, the Court
disagrees with Plaintiff and finds that the ALJ’s determination of weight is supported by
substantial evidence.
1.
The Opinions of Plaintiff’s Treating Physicians
The medical opinions of physicians who have long treated the claimant for impairments
related to the disability determination are provided greater weight than those of non-examining
physicians. 20 C.F.R. § 404.1527(c)(2)(i-ii); Radford v. Colvin 734 F.3d 288, 295-96 (4th Cir.
2013). A treating physician’s opinion is accorded controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
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other substantial evidence in the record. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Thus,
by negative implication, if a physician’s opinion is not supported by clinical evidence or if it is
inconsistent with other substantial evidence, it should be accorded significantly less weight. Craig
v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). Finally, the Court must defer to an ALJ’s assignment
of weight to medical sources unless they are unsupported by substantial evidence. Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2012).
In this case, the ALJ accorded Plaintiff’s treating mental health examiners little weight and
accorded great weight to the non-examining, state agency psychological consultants. Plaintiff
alleges this violates 20 C.F.R. § 404.1527(c)(2) and therefore warrants remand. (Tr. 20). Plaintiff
argument is unavailing. The ALJ expressly found that treating psychologist Dr. Rand and treating
psychiatrist Dr. Glover’s opinions were not consistent with the medical evidence of record. (Tr.
29). Both physicians found that Plaintiff would not be able to work given his social impairments.
Id. The ALJ cited to Dr. Marlow’s analysis, Plaintiff’s treating therapist, as conflicting evidence,
who had stated that Plaintiff “did not have any limitations in activities of daily living, the ability
to maintain socially appropriate behavior, and adhere to basic standards of neatness and
cleanliness.” Id. The ALJ went on to provide an extensive explanation as to which of Dr.
Marlow’s opinion was accorded weight. (Tr. 29-30).
The ALJ provided extensive explanation for why Dr. Marlow’s opinion as to Plaintiff’s
social limitations and concentration, persistence and pace limitation was not consistent with the
medical evidence of record. (Tr. 29-30). While the ALJ concurred that Plaintiff had moderate
social functioning limitations, the ALJ found that Dr. Marlow’s finding of four-or-more episodes
of decompensation was without any documentation.
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Furthermore, the ALJ found that Dr.
Marlow’s finding that Plaintiff was markedly limited in social functioning was contradicted by her
own treatment notes.
In conclusion, according the deferential standard of substantial evidence review, Dunn, 607
F. App’x at 267, the ALJ’s determinations of weight to be assigned to Plaintiff’s treating
physicians are supported by substantial evidence and this Court must defer to the ALJ’s judgment.
Hancock, 667 F.3d at 472.
2.
The Veterans Affairs Disability Determination
Decisions by any other governmental agency that a claimant is disabled is not binding on
an ALJ’s determination. SSR 06-03P, 2006 WL 2329939 at *6 (Aug. 9, 2006). However, the
Fourth Circuit has held that disability determinations by the Department of Veterans Affairs (VA)
should be accorded substantial weight if it resulted from an evaluation of the same condition and
same underlying evidence that was relevant to the ALJ’s determination. Bird v. Commissioner of
Social Security Administration, 699 F.3d 337, 343 (4th Cir. 2012). An ALJ may give less weight
to a VA disability determination when the record before the ALJ demonstrates that such a deviation
is appropriate. Id. Compare Cotton v. Colvin, No. 1:12-CV-00340-FDW-DSC, 2013 WL
4509710, at *3-4 (W.D.N.C. Aug. 23, 2013) (remanding when ALJ failed to address VA disability
rating or explain consideration of disability rating); with Becker v. Colvin, 1:16-CV-00047-FDW,
2017 WL 1179154, at 2 (Mar. 28, 2017) (affirming when ALJ “fully explained the reasons” why
the VA decision was generally inconsistent with the record).
In this case, on February 11, 2014, the VA determined that Plaintiff was unemployable
because he was seventy-percent disabled due to his major depressive disorder and twenty-percent
disabled due to his limited supination and pronation, left elbow, S/P injury, and four surgeries.
(Tr. 775).
Plaintiff’s major depressive disorder was based on, inter alia, near-continuous
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depression and obsessional rituals which interfere with routine activities. (Tr. 776). Because the
ALJ determined that Plaintiff was severely impaired by major depressive disorder and obsessive
compulsive disorder (Tr. 20), Plaintiff asserts that Bird requires the ALJ to accord the VA’s finding
of complete disability substantial weight. Bird 699 F.3d at 343 (remanding determination when
ALJ accorded little weight to VA evaluation of same condition and same underlying evidence)
(Doc. No. 11).
However, the court in Bird explained that an ALJ is permitted to give less weight to a VA
determination when the record clearly demonstrates that such deviation is appropriate. Id. Here,
the ALJ found that on several occasions, from November 2011 to January 2014, Plaintiff reported
limited symptoms of his mental impairments leading up to VA’s disability assessment in January,
2014. (Tr. 30). This suggests that the ALJ found that Plaintiff’s impairments were not as severe
as determined by the VA. Furthermore, the ALJ noted that the VA assessed Plaintiff’s disabling
medical condition on January 27, 2014, yet Plaintiff failed to report for treatment of this condition
until February 2015, a delay of more than a year. Id. For these reasons, the ALJ found that the
VA’s determination of Plaintiff’s complete disability should be given little weight. Id. This case
is unlike Bird, wherein the ALJ deviated from the VA’s determination merely because it had an
effective date outside of the ALJ’s pre-DLI assessment. Bird, 699 F.3d at 343-44.
In conclusion, the ALJ did not err by according less weight to the VA’s determination due
to evidence which a reasonable mind might find accept as adequate to support the ALJ’s
conclusion. Because the ALJ’s determination was supported by substantial evidence, this Court
may not disturb it upon review. Hancock, 667 F.3d at 472.
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3.
The Plaintiff’s Global Assessment of Functioning Scores
Global Assessment of Function (GAF) ratings are medical opinions that measure an adult’s
social, occupational, and psychological functioning. Like other medical opinions, GAF ratings are
given weight according to, inter alia, the quality of explanation a source provides for the opinion.
20 C.F.R. 404.1527(c)(3). Generally, a GAF rating that is unaccompanied by a clinician’s
explanation may not provide evidence of a claimant’s disability. See McDaniel v. Astrue, No.
1:09-CV109, 2010 WL 311050, at *5 (W.D.N.C. July 22, 2010) (citing Seymore v. Apfel, 131
F.3d 152 (10th Cir. 1997), recommendation adopted No. 1:09-CV109, 2010 WL 3211048.
Furthermore, an ALJ may accord less weight to medical opinions derived from a claimant’s
infrequently consulted medical sources, as they fail to provide a longitudinal picture of claimant’s
medical impairments. 20 C.F.R. 404.1527(c)(2). Finally, an error in assigning weight to medical
opinions are harmless if remand would not result in a different result. Dower v. Astrue, No. 1:11CV120, 2012 WL 1416410, at *5 (W.D.N.C. Mar. 19, 2012).
Here, the ALJ found that all of Plaintiff’s submitted GAF ratings were unaccompanied by
either a clinician’s explanation or an indication as to which period the rating applied. (Tr. 31).
For these reasons, the ALJ stated that the ratings could not provide a reliable longitudinal picture
of Plaintiff’s mental functioning for a disability analysis, and should therefore be accorded little
weight. Id. Plaintiff’s argument that the decision must be remanded because the ALJ’s failed to
explicitly apply this reasoning to each GAF rating is unavailing. (Doc. No. 11-1). At most, the
ALJ’s lack of thoroughness may amount to harmless error, as the defect the ALJ identified in the
explicitly referenced GAF score is present in each unreferenced GAF rating. Because such an
error would not lead to a different result, the error does not warrant remand. Dower, 2012 WL
1416410, at *5.
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Therefore, the ALJ decision’s to accord little weight to Plaintiff’s GAF scores is supported
by substantial evidence and the determination may not be disturbed by this Court. Hancock, 667
F.3d at 472.
IV.
CONCLUSION
Plaintiff’s Motion for Summary Judgment (Doc. No. 11) is GRANTED, and Defendant’s
Motion (Doc. No. 12) is DENIED. The Court VACATES the ALJ’s decision and REMANDS the
case to the Commissioner for further proceedings consistent with this ORDER.
IT IS SO ORDERED.
Signed: June 27, 2017
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