Dockery v. Saul

Filing 16

MEMORANDUM OF DECISION AND ORDER granting Plaintiff's 11 Motion for Summary Judgment; denying Defendant's 13 Motion for Summary Judgment. Pursuant to the power of this Court to enter judgment affirming, modifyi ng or reversing the decision of the Commissioner under Sentence Four of 42 U.S.C § 405(g), the decision of the Commissioner is REVERSED and the case is hereby REMANDED for further proceedings consistent with this decision. Signed by Chief Judge Martin Reidinger on 2/13/2021. (kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:20-cv-00008-MR

JARRET LEE DOCKERY,

)
)
Plaintiff,
)
)
vs.
)
)
ANDREW SAUL,
)
Commissioner of Social Security,
)
)
Defendant.
)
________________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Summary Judgement [Doc. 11] and the Defendant’s Motion for Summary
Judgement [Doc. 13].
I.

BACKGROUND
On April 18, 2014, the Plaintiff, Jarret Lee Dockery (“Plaintiff”), filed an

application for supplemental security income under Title XVI of the Social
Security Act (the “Act”), alleging an onset date of November 14, 2007. The
Plaintiff amended his alleged onset date to April 18, 2014. [Transcript (“T.”)
at 18]. The Plaintiff’s claims were initially denied on August 1, 2014, [id. at
188], and again denied upon reconsideration on August 21, 2017. [Id. at
205]. On the Plaintiff’s request, a hearing was held on March 21, 2019,

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before an Administrative Law Judge (“ALJ”). [Id. at 18]. On June 10, 2019,
the ALJ issued a written decision denying the Plaintiff benefits. [Id. at 31].
On November 25, 2019, the Appeals Council denied the Plaintiff’s
request for review thereby making the ALJ’s decision the final decision of the
Commissioner. [Id. at 1]. The Plaintiff has exhausted all available
administrative remedies, and this case is now ripe for review pursuant to 42
U.S.C. § 405(g).
II.

STANDARD OF REVIEW
The Court’s review of a final decision of the Commissioner is limited to

(1) whether substantial evidence supports the Commissioner’s decision,
Richardson v. Perales, 402 U.S. 389, 401 (1971); and (2) whether the
Commissioner applied the correct legal standards. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). “When reviewing a Social Security
Administration disability determination, a reviewing court must ‘uphold the
determination when an ALJ has applied correct legal standards and the
ALJ’s factual findings are supported by substantial evidence.’” Pearson v.
Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (quoting Bird v. Comm’r, 699 F.3d
337, 340 (4th Cir. 2012)). Substantial evidence “means—and means only—
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, (2019)
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(internal quotation marks omitted); Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005). Substantial evidence “consists of more than a mere scintilla
of evidence but may be less than a preponderance.” Pearson, 810 F.3d at
207 (internal quotation marks omitted).
“In reviewing for substantial evidence, [the Court should] not
undertake to reweigh conflicting evidence, make credibility determinations,
or substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653
(internal quotation marks and alteration omitted). Rather, “[w]here conflicting
evidence allows reasonable minds to differ,” the Court defers to the ALJ’s
decision. Id. (internal quotation marks omitted). To enable judicial review for
substantial evidence, “[t]he 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.” Radford v. Colvin, 734
F.3d 288, 295 (4th Cir. 2013). It is the duty of the ALJ to “build an accurate
and logical bridge from the evidence to his conclusion.” Monroe v. Colvin,
826 F.3d 176, 189 (4th Cir. 2016) (citation omitted). “Without this
explanation, the reviewing court cannot properly evaluate whether the ALJ
applied the correct legal standard or whether substantial evidence supports
his decisions, and the only recourse is to remand the matter for additional
investigation and explanations.” Mills v. Berryhill, No. 1:16-cv-00025-MR,
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2017 WL 957542, at *4 (W.D.N.C. Mar. 10, 2017) (Reidinger, J.) (citing
Radford, 734 F.3d at 295).
III.

THE SEQUENTIAL EVALUATION PROCESS
A “disability” entitling a claimant to benefits under the Social Security

Act, as relevant here, is “[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.”
42 U.S.C. § 423(d)(1)(A). The Social Security Administration Regulations set
out a detailed five-step process for reviewing applications for disability. 20
C.F.R. §§ 404.1520, 416.920; Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir.
2015). “If an applicant’s claim fails at any step of the process, the ALJ need
not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203
(4th Cir. 1995) (citation omitted). The burden is on the claimant to make the
requisite showing at the first four steps. Id.
At step one, the ALJ determines whether the claimant is engaged in
substantial gainful activity. If so, the claimant’s application is denied
regardless of the medical condition, age, education, or work experience of
the claimant. Id. (citing 20 C.F.R. § 416.920). If not, the case progresses to
step two, where the claimant must show a severe impairment. If the claimant
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does not show any physical or mental deficiencies, or a combination thereof,
which significantly limit the claimant’s ability to perform work activities, then
no severe impairment is established and the claimant is not disabled. Id.
At step three, the ALJ must determine whether one or more of the
claimant’s impairments meets or equals one of the listed impairments
(“Listings”) found at 20 C.F.R. 404, Appendix 1 to Subpart P. If so, the
claimant is automatically deemed disabled regardless of age, education or
work experience. Id. If not, before proceeding to step four, the ALJ must
assess the claimant’s residual functional capacity (“RFC”). The RFC is an
administrative assessment of “the most” a claimant can still do on a “regular
and continuing basis” notwithstanding the claimant’s medically determinable
impairments and the extent to which those impairments affect the claimant’s
ability to perform work-related functions. Social Security Ruling (“SSR”) 968p; 20 C.F.R. §§ 404.1546(c), 404.943(c), 416.945.
At step four, the claimant must show that his or her limitations prevent
the claimant from performing his or her past work. 20 C.F.R. §§ 404.1520,
416.920; Mascio, 780 F.3d at 634. If the claimant can still perform his or her
past work, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv); Mascio, 780 F.3d at 635. Otherwise, the case progresses
to the fifth step where the burden shifts to the Commissioner. At step five,
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the Commissioner must establish that, given the claimant’s age, education,
work experience, and RFC, the claimant can perform alternative work which
exists in substantial numbers in the national economy. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v); Mascio, 780 F.3d at 635; Hines v.
Barnhart, 453 F.3d 559, 567 (4th Cir. 2006). “The Commissioner typically
offers this evidence through the testimony of a vocational expert responding
to a hypothetical that incorporates the claimant’s limitations.” Mascio, 780
F.3d at 635. If the Commissioner succeeds in shouldering his burden at step
five, the claimant is not disabled and the application for benefits must be
denied. Id. Otherwise, the claimant is entitled to benefits.
IV.

THE ALJ’S DECISION
At step one, the ALJ found that the Plaintiff has not engaged in

substantial gainful activity since April 18, 2014, the amended alleged onset
date. [T. at 20]. At step two, the ALJ found that the Plaintiff has the following
severe impairments: “degenerative disc disease, lumbar radiculopathy,
lumbar/ facet arthropathy, multilevel degenerative spondylosis, degenerative
spondylolisthesis, peripheral neuropathy, depression, and anxiety.” [Id. at
21]. At step three, the ALJ determined that the Plaintiff does not have an
impairment or combination of impairments that meets or medically equals

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the Listings. [Id.]. The ALJ then determined that the Plaintiff, notwithstanding
his impairments, had the RFC:
[T]o perform light work as defined in 20 CFR 416.967(b) except
he is able to occasionally climb and balance but never stoop,
kneel, squat and craw; he is able to frequently but not
continuously use his bilateral upper extremities for reaching in all
directions, including overhead but he must avoid workplace
hazards; he is able to follow short, simple instructions and
perform routine tasks but he is not able to perform work requiring
a production rate or demand pace; he is able to sustain attention
and concentration for two hours at a time and he is able to
perform work with frequent but not continuous contact or
interaction with supervisors, co-workers and the public.
[Id. at 23].
At step four, the ALJ identified the Plaintiff’s past relevant work as a
forklift operator, material handler, warehouse worker, and counter attendant.
[Id. 29]. The ALJ determined, however, that the Plaintiff “is unable to perform
any past relevant work.” [Id.]. At step five the ALJ concluded, that based on
the Plaintiff’s age, education, work experience, and RFC, the Plaintiff is able
to perform other jobs existing in significant numbers in the national economy,
including marker, routing clerk, and order caller. [Id. at 30]. The ALJ therefore
concluded that the Plaintiff was not “disabled” as defined by the Act from
April 18, 2014, the alleged onset date, through July 10, 2019, the date of the
decision. [Id. at 31].

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V.

DISCUSSION1
The Plaintiff presents two related assignments of error. The Plaintiff

argues that the ALJ’s RFC assessment is not supported by substantial
evidence because the ALJ failed to properly weigh the opinions of NP Dyer,
Plaintiff’s treating nurse practitioner, and consulting examiner (“CE”) Dr.
Bevis. [Doc. 12 at 7–12].
The RFC representants “the most [a claimant] can do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). The ALJ is responsible for
determining a claimant’s RFC, id. § 404.1546(c), based on “all of the relevant
evidence in the [claimant’s] case record.” Id. § 404.1545(a)(1). In forming the
RFC, the ALJ “must both identify evidence that supports [her] conclusion and
build an accurate and logical bridge from that evidence to [her] conclusion.”
Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (brackets, emphasis,
and internal quotation marks omitted); see also Monroe, 826 F.3d at 189. An
ALJ’s RFC “assessment must include a narrative discussion describing how
the evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,

1

Rather than set forth a separate summary of the facts in this case, the Court has
incorporated the relevant facts into its legal analysis.

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observations).” Mascio, 780 F.3d at 636 (citing Social Security Ruling 968p).
The ALJ must address each “medical opinion” in the claimant's record
and include a weight given to each opinion regardless of the source of the
opinion. Woods, 888 F.3d at 695. Medical opinions are statements from
physicians and psychologists “that reflect judgments about the nature and
severity of [an individual’s] impairment(s), including [] symptoms, diagnosis
and prognosis, what [the individual] can still do despite [the] impairment(s),
and [] physical or mental restrictions.” 20 C.F.R. § 416.927; see also SSR
06-03p. The statements may be submitted by acceptable medical sources,
including treating sources and consultative examiners. SSR 96-5.
When the ALJ is evaluating and weighing medical opinions the ALJ
should consider multiple factors, including (1) the examining relationship, (2)
the treatment relationship, including the length of the relationship and the
frequency of examination and the nature and extent of the relationship; (3)
supportability; (4) consistency; (5) specialization; and (6) any other relevant
factors. 20 C.F.R. §§ 404.1527(c)(1)–(6), 416(c)(1)–(6) (“[W]e consider all of
the following factors in deciding the weight we give to any medical opinion.”).
The regulations require “ALJs to consider all of the enumerated factors
in deciding what weight to give to a medical opinion.” Arakas v. Comm'r, Soc.
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Sec. Admin., 983 F.3d 83, 107 n.16 (4th Cir. 2020) (citing 20 C.F.R. §
404.1527(c)) (emphasis in original). The Fourth Circuit recently considered
the extent to which these factors must be considered in reference to a
treating physician’s opinion. In Dowling v. Commissioner of Social Security
Administration, the Fourth Circuit held that although “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.” Dowling v. Comm'r of SSA,
__F.3d. __, 2021 WL 203371, at *5 (4th Cir. Jan. 21, 2021). The Fourth
Circuit remanded the case for consideration of the each of the factors. Id.
Dr. Bevis is a consulting examiner and therefore his opinion is a
“medical opinion” which the ALJ must properly weigh. 20 C.F.R. §§
404.1527(c), 416(c). Dr. Bevis examined the Plaintiff once and performed a
psychological evaluation and provided an opinion as to the Plaintiff’s ability
to perform certain tasks. [T. at 556]. Dr. Bevis concluded that the Plaintiff “is
capable of understanding and following instructions that do not require
physical effort beyond his capabilities” and “is capable of relating to fellow
workers and supervisors for shorter periods of time.” [Id. at 559]. Dr. Bevis
also stated that the Plaintiff “is experiencing significant long-term problems
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with chronic pain, loss of physical energy and stamina, and significantly
depressed moods. He will experience significant difficulties tolerating normal
stressors, pressures, and demands associated with gainful employment at
this time.” [Id.].
The ALJ gave “great weight” to Dr. Bevis’s opinion regarding the
Plaintiff’s ability to understand and follow instructions and relate to
supervisors and co-workers. [Id. at 27]. However, the ALJ also found that the
Dr. Bevis’s conclusion’s regarding the Plaintiff’s “significant difficulty
tolerating normal stressors, pressures and demands associated with gainful
employment is not supported by any objective findings.” [Id.]. The ALJ
concluded that the finding was not supported because “the [Plaintiff] reported
doing well overall and stated his anxiety was generally under control without
medication.” [Id.].
This evidence of Plaintiff’s report, however, does not contradict or
undermine Dr. Bevis’ finding on this point. Dr. Bevis stated that because of
the Plaintiff’s long-term pain and depressed mood, the Plaintiff would have
difficulty “tolerating normal stressors, pressures, and demands associated
with gainful employment.” [T. at 559]. This is not contradicted by the fact that
the Plaintiff said that “his anxiety was generally under control” as depression
and anxiety are different ailments. In one of the treatment notes which the
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ALJ cited as contradicting evidence because the Plaintiff felt well overall, the
Plaintiff also stated that he felt depressed. [Id. at 505]. As the ALJ does not
cite to this information the Court is “left to guess” about whether or not the
ALJ considered this evidence, and if it was considered, how it was
considered. Mascio, 780 F.3d at 637. Furthermore, “[b]ecause symptoms of
mental illness may wax and wane over the course of treatment, the fact that
[the plaintiff]” did not consistently exhibit certain symptoms is “not
inconsistent with the conclusion that [he] is unable to work.” Testamark v.
Berryhill, 736 Fed. App’x 395, 398–99 (4th Cir. 2018). Thus, the fact that the
Plaintiff’s symptoms were not present at all times does not negate the
relevance of the occasions when the Plaintiff demonstrated symptoms of
depression. [T. at 558, 570, 688].
“Further, it is an elemental principle of administrative law that agency
determinations must ‘be made in accordance with certain procedures which
facilitate judicial review.’” Dowling, __ F.3d. at __, 2021 WL 203371, at *6
(quoting Patterson v. Comm'r of SSA, 846 F.3d 656, 662 (4th Cir. 2017)).
One such procedure is the requirement that the ALJ consider all of the
enumerated factors in the regulations in deciding the weight to give any
medical opinion. 20 C.F.R. §§ 404.1527(c)(1)–(6), 416(c)(1)–(6). In this

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case, the ALJ did not engage in a meaningful discussion of the factors so as
to facilitate judicial review. Mascio, 780 F.3d at 637.2
Because the Court cannot determine whether the ALJ properly
evaluated the opinions of record, the Court cannot say that the Plaintiff's RFC
was properly addressed or that the ALJ's ultimate decision was supported
by substantial evidence. Monroe, 826 F.3d at 191; Patterson, 846 F.3d at
662–63 (remanding and noting that “because [the Court] cannot gauge the
propriety of the ALJ's [ ] assessment, [the Court] cannot say that substantial
evidence supports the ALJ's denial of benefits”). Remand is, therefore,
necessary to allow the ALJ to consider Dr. Bevis’s medical opinion in light of
each of the Section 416(c) factors. See Dowling, __ F.3d. at __, 2021 WL
203371, at *6.
VI.

CONCLUSION
The Court expresses no opinion as to whether the ALJ is correct in the

determination that the Plaintiff is not disabled or in the determination that Dr.

In the Plaintiff’s other assignment of error, the Plaintiff alleges that the ALJ did not
adequately explain the weight given to NP Byer’s opinion. As the Court finds that remand
is necessary on the Plaintiff’s other assignment of error, the Court does not address this
issue. However, the Court notes the regulations state that the factors used to evaluate
medical opinions should be used to help explain the weight given to other opinions, like
those of nurse practitioners. 20 CFR §§ 404.1527(f)(2), 416.927(f)(2); SSR 06-03p; Jones
v. Berryhill, 681 F. App'x 252, 256 (4th Cir. 2017) (noting that that ALJs should explain
the weight given to opinions from other sources).
2

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Bevis’s opinion regarding the Plaintiff’s ability to tolerate workplace stressors
is entitled to little weight. However, the reviewing Court cannot be left to
guess as to how the ALJ arrived at her conclusions. The Plaintiff is entitled
to have all medical opinions properly considered and have the ALJ explain
how she arrived at her conclusion as to the weight given to each opinion. On
remand the ALJ should provide a record that gives clear reasons for the
weight assigned to each opinion based on the factors in 20 C.F.R. § 416(c).
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for
Summary Judgment [Doc. 11] is GRANTED, and that the Defendant’s
Motion for Summary Judgment [Doc. 13] is DENIED. Pursuant to the power
of this Court to enter judgment affirming, modifying or reversing the decision
of the Commissioner under Sentence Four of 42 U.S.C § 405(g), the decision
of the Commissioner is REVERSED and the case is hereby REMANDED for
further proceedings consistent with this decision.
IT IS SO ORDERED.
Signed: February 13, 2021

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