Forquer v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGES REPORT AND RECOMMENDATION 17 , REVERSING THE COMMISSIONERSDECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND § 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER: The Court ADOPTS IN PART AND REJECTS INPART the R&R 17 , REVERSES the Commissioners decision, and REMANDS this case to the Commissioner for further proceedings in accord with this Memorandum Opinion and Order. The Court OVERR ULES Forquers objections as to the reopening and cognitive brain disorder claims 18 ; GRANTS IN PART the Commissioners motion for summary judgment regarding her cognitive brain disorder and reopening claims; SUSTAINS Forquers objections to the R&Rs findings as to her psychological opinion and credibility claims; GRANTS IN PART Forquers motion for summary judgment by REVERSING the Commissioners decision under sentence four of 42 U.S.C. 405(g); REMANDS Forquers psychological opinion and credibil ity claims to the Commissioner for further proceedings inaccord with this Memorandum Opinion and Order. The Court further DIRECTS that this case be STRICKEN from the active docket of this Court. The Court DIRECTS the Clerk of Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 8/11/16. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARY ANN FORQUER,
Plaintiff,
v.
CIVIL ACTION NO. 1:15CV57
(Judge Keeley)
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND §
1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
On April 1, 2015, the plaintiff, Mary Ann Forquer (“Forquer”),
filed a complaint seeking review of the adverse decision of the
defendant, Carolyn Colvin, Acting Commissioner of Social Security
(“the Commissioner”) (Dkt. No. 1). On July 13, 2016, the Honorable
Michael John Aloi, United States Magistrate Judge, issued a Report
and
Recommendation
(“R&R”),
recommending
that
the
Court
deny
Forquer’s motion for summary judgment, grant the Commissioner’s
motion for summary judgment, and dismiss the case (Dkt. No. 17).
Forquer filed timely objections to the R&R (Dkt. No. 18).
For the reasons that follow, the Court ADOPTS IN PART and
REJECTS IN PART the R&R, GRANTS IN PART the Commissioner’s motion
for summary judgment to dismiss Forquer’s reopening and cognitive
brain disorder claims, GRANTS IN PART Forquer’s motion for summary
judgment by REVERSING the Commissioner’s decision under sentence
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
four of 42 U.S.C. § 405(g) and § 1383(c)(3), and REMANDS Forquer’s
psychological opinion and credibility claims to the ALJ for further
proceedings.
BACKGROUND
On
December
28,
2011,
Forquer
filed
an
application
for
supplemental security income and disability insurance benefits,
which the Commissioner denied (Dkt. No. 1 at 1).
Administrative
Law Judge (“ALJ”) Terrence Hugar held an administrative hearing on
October 29, 2013, following which he denied Forquer’s claim on
January 9, 2014.
Id.; Dkt. No. 9-2 at 34.
Forquer appealed the
ALJ’s decision to the Appeals Council, which declined to grant
review (Dkt. No. 1 at 2).
On April 1, 2015, Forquer filed suit in this Court, seeking
reversal of the Commissioner’s decision.
Id.
The Court has
jurisdiction pursuant to 42 U.S.C. § 405(g) (2012) and 42 U.S.C. §
1383(c)(3) (2012).
It incorporates by reference Magistrate Judge
Aloi’s thorough recitation of the facts surrounding Forquer’s claim
for disability insurance benefits (Dkt. No. 17 at 2-21).
2
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Forquer has argued that the Commissioner committed reversible
error in four respects: (1) The ALJ failed to consider whether reopening
issues
existed;
(2)
the
ALJ
discounted
all
of
the
psychological evidence, which left no evidence on which he could
rely when making his decision; (3) the ALJ failed to discuss
evidence
that
contradicted
his
opinion
regarding
Forquer’s
credibility; and (4) the ALJ erred by not recognizing Forquer’s
cognitive impairment to be “severe” (Dkt. No. 12 at 1).
In the R&R, Magistrate Judge Aloi concluded that Forquer’s
contentions lacked merit (Dkt. No. 17).
First, he found that the
ALJ did not err by failing to reopen Forquer’s previously denied
disability claim because he was not required to do so by the
regulation. Id. at 26. Second, he found that substantial evidence
supported the ALJ’s decision to discredit the four psychological
experts because the ALJ relied on medical records to support his
opinion. Id. at 30. Third, he concluded that substantial evidence
supported the ALJ’s credibility decision.
Id. at 36.
Finally, he
found that substantial evidence supported the ALJ’s determination
that
Forquer’s
cognitive
brain
3
disorder
was
not
a
severe
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
impairment.
Id. at 41.
In her objections to the R&R, Forquer
argued that the ALJ committed reversible error by discounting all
four psychological opinions, refusing to address evidence that is
contradictory to his credibility decision, and relying on evidence
to which he attributed little weight when determining whether
Forquer has a severe cognitive disorder (Dkt. No. 18).
APPLICABLE LAW
I.
Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(C) (2012), this Court must
review de novo any portion of the magistrate judge’s recommendation
to which objection is timely made.
As to those portions of a
recommendation to which no objection is made, a magistrate judge’s
findings and recommendation will be upheld unless they are “clearly
erroneous.” See Webb v. Califano, 468 F. Supp. 825, 828 (E.D. Cal.
1979). Because Forquer filed objections, this Court will review de
novo those portions of the R&R to which she has objected.
II.
Judicial Review of an ALJ’s Decision
Judicial review of a final decision regarding disability
benefits is limited to determining whether the ALJ’s findings are
4
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
supported by substantial evidence, and whether the ALJ applied the
correct law.
See 42 U.S.C. § 405(g); Stricker v. Colvin, No.
2:15CV15, 2016 WL 543216, at *1 (N.D.W. Va. Feb. 10, 2016) (Bailey,
J.).
The Court will uphold an ALJ’s findings when supported by
substantial evidence.
See Milburn Colliery Co. v. Hicks, 138 F.3d
524, 528 (4th Cir. 1998).
Substantial evidence is that which a
“reasonable mind might accept as adequate to support a conclusion.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks
omitted)).
Further,
the
“possibility
of
drawing
two
inconsistent conclusions from the evidence does not prevent an
administrative
agency’s
findings
from
being
supported
by
substantial evidence.” Sec’y of Labor v. Mut. Mining, Inc. 80 F.3d
110, 113, (4th Cir. 1996) (quoting Conolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)(internal quotation marks omitted)).
The issue is not whether a claimant is disabled, but whether
the ALJ’s finding of disabled or not disabled is supported by
substantial
evidence
and
was
reached
application of the relevant law.
5
based
upon
a
correct
See Mayer v. Astrue, 662 F.3d
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
700, 704 (4th Cir. 2011) (citing Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996)).
It is the duty of the ALJ, and not of the Court,
to make findings of fact and to resolve disputed evidence. King v.
Califano, 599 F.2d 597, 599 (4th Cir. 1979).
The Court does not
find facts or try the case de novo when reviewing an ALJ’s
disability determination.
Id. at 599 (citing Vitek v. Finch, 438
F.2d 1157 (4th Cir. 1971)).
III. Five-Step Evaluation Process
To be disabled under the Social Security Act, a claimant must meet
the following criteria:
[The] individual . . . [must have a] physical or mental
impairment or impairments . . . of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
. . . '[W]ork which exists in the national economy' means
work which exists in significant numbers either in the
region where such individual lives or in several regions
of the country.
6
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
42
U.S.C.
§
423(d)(2)(A)
(2012).
The
Social
Security
Administration uses the following five-step sequential evaluation
process to determine whether a claimant is disabled:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we
will find that you are not disabled.
(ii) At the second step, we consider the medical severity
of your impairment(s). If you do not have a severe
medically determinable physical or mental impairment that
meets the duration requirement . . . or a combination of
impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an
impairment(s) that meets or equals one of our listings .
. . and meets the duration requirement, we will find that
you are disabled.
[Before the fourth step, the [residual functional
capacity, or RFC] of the claimant is evaluated “based on
all the relevant medical and other evidence in your case
record . . . .”]
(iv) At the fourth step, we consider our assessment of
your [RFC] and your past relevant work. If you can still
do your past relevant work, we will find that you are not
disabled.
(v) At the fifth and last step, we consider our
assessment of your [RFC] and your age, education, and
work experience to see if you can make an adjustment to
other work. If you can make an adjustment to other work,
we will find that you are not disabled. If you cannot
make an adjustment to other work, we will find that you
are disabled.
7
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
20 C.F.R. § 404.1520 (2015); 20 C.F.R. § 416.920 (2012).
In steps
one through four, the burden is on the claimant to prove that he or
she is disabled and that, as a result of the disability, he or she
is unable to engage in any gainful employment.
Califano, 574 F.2d 802, 804 (4th Cir. 1978).
Richardson v.
Once the claimant
meets this burden, the burden of proof shifts to the Government at
step five to demonstrate that jobs exist in the national economy
that the claimant is capable of performing.
F.2d 299, 301 (4th Cir. 1968).
Hicks v. Gardner, 393
If the ALJ determines that the
claimant is either disabled or not disabled at any of the five
steps, the process will not move forward. 20 C.F.R. § 404.1520; 20
C.F.R. § 416.920.
ANALYSIS
I.
Re-Opening
Forquer claims that the ALJ erred by failing to inquire as to
whether he should reopen her previous applications for social
security benefits (Dkt. No. 12 at 6).
The R&R concluded that the
ALJ acted within his discretion, and that the rule does not require
reopening (Dkt. No. 17 at 25–26).
8
Forquer did not object to this
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
conclusion (Dkt. No. 18).
After careful review, finding no clear
error, the Court ADOPTS the recommendation in the R&R as to
Forquer’s re-opening claim, GRANTS the Commissioner’s motion for
summary judgment as to that claim.
II.
See Webb, 468 F. Supp. at 825.
Psychological Opinions
Forquer next contends that the ALJ erred by giving “little
weight” to the opinions of all four psychological evaluators, but
then failing to explain how he formulated various psychological
limitations (Dkt. No. 12 at 7–8).
The R&R concluded that the ALJ
had sufficiently explained why he discredited the psychological
opinions, and had pointed to specific evidence of record to support
his conclusion (Dkt. No. 17 at 26–30).
R&R,
arguing
that
the
ALJ’s
position
Forquer objected to the
is
clearly
wrong
and
inconsistent with all of the psychological opinions (Dkt. No. 18 at
1–2).
living
She contends the ALJ’s reliance on her activities of daily
does
not
compel
the
substantial gainful activity.
conclusion
that
Id. at 2–3.
she
can
perform
Finally, she argues
that the ALJ cannot use his own medical interpretation to make a
finding that she is not disabled.
9
Id. at 4.
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
A.
Applicable Law
When a claimant’s psychological limitations are implicated, in
addition to the five-step sequential process, the ALJ must utilize
the special technique.
See 20 C.F.R. § 404.1520a(b) (2015).
Pursuant to the special technique, the ALJ “must first evaluate
your
pertinent
determine
symptoms,
whether
impairment(s).”
you
Id.
signs,
have
a
and
laboratory
medically
findings
determinable
to
mental
If the claimant has a medically determinable
mental impairment, the ALJ “must specify the symptoms, signs, and
laboratory
findings
that
substantiate
the
presence
impairment(s) and document [his] findings . . . .”
of
the
Id.
The ALJ must then “rate the degree of functional limitation
resulting from the impairment(s)” and record findings.
Id.
The
ALJ rates a claimant’s degree of functional limitation as none,
mild, moderate, marked, and extreme, in four areas: (1) activities
of
daily
living;1
(2)
social
functioning;2
1
(3)
concentration,
Activities of daily living “include adaptive activities such
as cleaning, shopping, cooking, taking public transportation,
paying bills, maintaining a residence, caring appropriately for
your grooming and hygiene, using telephones and directories, and
10
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
persistence, or pace;3 and, (4) episodes of decompensation.4
20
C.F.R. § 404.1520(c)(3)-(4); 20 C.F.R. Pt. 404, Subpt. P. App. 1,
§ 12.00(C) (2015).
If the claimant’s degree of limitation in the first three
functional areas is “none” or “mild,” and the degree of limitation
in the fourth area is “none,” the ALJ “will generally conclude that
your impairment(s) is not severe, unless the evidence otherwise
using a post office.”
20 C.F.R. Pt. 404, Subpt. P. App. 1, §
12.00(C)(1) (2015).
The ALJ assesses the quality of these
activities “by their independence, appropriateness, effectiveness,
and sustainability.” Id.
2
Social functioning refers to the claimant’s “capacity to
interact independently, appropriately, effectively, and on a
sustained basis with other individuals.” 20 C.F.R. Pt. 404, Subpt.
P. App. 1, § 12.00(C)(2). The ALJ considers a claimant’s “ability
to get along with others,” cooperative behaviors, consideration for
others, awareness of others’ feelings, and social maturity. Id.
3
Concentration, persistence, or pace “refers to the ability
to sustain focused attention and concentration sufficiently long to
permit the timely and appropriate completion of tasks commonly
found in work settings.” 20 C.F.R. Pt. 404, Subpt. P. App. 1, §
12.00(C)(3).
4
Episodes of decompensation “are exacerbations or temporary
increases in symptoms or signs accompanied by a loss of adaptive
functioning . . . .”
20 C.F.R. Pt. 404, Subpt. P. App. 1, §
12.00(C)(4).
11
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
indicates that there is more than a minimal limitation in your
ability to do basic work activities.”
20 C.F.R. § 404.1520(d)(1).
The ALJ must “include a specific finding as to the degree of
limitation in each of the functional areas . . . .”
20 C.F.R. §
404.1520(e)(4).
If the claimant’s mental impairment is severe, the ALJ then
must determine “if it meets or is equivalent in severity to a
listed mental disorder.”
20 C.F.R. § 404.1520(d)(2).
If the
claimant’s severe mental impairment neither meets nor is equivalent
in severity to any listing, the ALJ then must assess the claimant’s
residual functional capacity.
B.
20 C.F.R. § 404.1520(d)(3).
The ALJ’s Opinion
The ALJ weighed the opinions of four psychological evaluators,
none of whom was a treating physician.5
5
These included Dr. Tony
A
treating
physician
“means
your
own
physician,
psychologist, or other acceptable medical source who provides you,
or has provided you, with medical treatment or evaluation and who
has, or has had, an ongoing treatment relationship with you.” 20
C.F.R. § 404.1502 (2015). Although the Commissioner “may consider
an acceptable medical source who has treated or evaluated you only
a few times . . . to be your treating source if the nature and
frequency of the treatment or evaluation is typical for your
12
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Goudy, Dr. Todd Mages, Dr. Ann Logan, and Dr. G. David Allen (Dkt.
No. 9-2).
Dr. Goudy, who examined Forquer on one occasion at her
attorney’s request, opined that she had mild to moderate impairment
in her activities of daily living, mild to moderate impairment in
social
functioning,
marked
impairment
in
concentration,
persistence, and pace, and a recent two-week hospital stay (Dkt.
No. 9-2 at 30).
He concluded that Forquer met Listing 12.04 C.2
because she had “a residual disease process that resulted in such
a marginal adjustment that even a minimal increase in mental
demands or change in environment would be predicted to cause the
individual to decompensate.” Id. The ALJ gave Dr. Goudy’s opinion
little weight, finding that it conflicted with the evidence of
record:
[T]he undersigned finds that the claimant has mild
limitations in her activities of daily living, moderate
limitations in social functioning and concentration,
persistence and pace and has not suffered any extended
episodes of decompensation as her hospitalization was
condition(s).” Id. Neither party claims that the doctors cited in
the ALJ’s decision are Forquer’s treating physicians.
13
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
only 10 days, not 2 weeks as stated by Dr. Goudy. . . .
In addition, there is no evidence that the claimant would
decompensate with even a minimal increase in mental
demands or change in environment as the evidence shows
that she is capable of living in a homeless shelter
environment, performing community service, using public
transportation, managing her finances, shopping in
stores, using the internet, reading, attending church and
maintaining a romantic relationship.
Id.
Dr. Mages, who had treated Forquer during her hospitalization
in 2013, opined that she had severe limitations in her ability to
understand, remember, and carry out detailed instructions, maintain
attention
and
concentration
for
an
extended
period
of
time,
complete a normal work day and work week without interruptions from
psychological symptoms, perform at a consistent pace without an
unreasonable number and length of rest periods, and appropriately
respond to changes in her work setting (Dkt. No. 9-2 at 31).
He also opined that Forquer had the following moderately
severe limitations:
her ability to remember locations and work
procedures; her ability to understand, remember, and carry out very
short, simple instructions; her ability to perform activities
within a schedule; her ability to maintain regular attendance, be
14
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
punctual within normal business tolerances, and sustain an ordinary
routine
without
special
supervision;
her
ability
to
work
in
coordination with or proximity to others without being distracted;
her ability to make simple work-related decisions; her ability to
interact appropriately with the public; her ability to accept
instructions and respond appropriately to supervisors’ criticism;
her ability to get along with co-workers and peers; her ability to
maintain
socially
appropriate
behavior
and
adhere
to
basic
standards of cleanliness; her ability to be aware of normal
hazards, take appropriate precautions, travel in unfamiliar places,
and use public transportation; and her ability to set realistic
goals or make independent plans.
Id.
Dr. Mages opined that Forquer would miss more than four days
of work per month, a limitation which dated to 2008.
Id.
He
concluded that she met Listings 12.02, 12.03, and 12.04, and had
marked limitations in her activities of daily living, extreme
limitations in maintaining social functioning and maintaining
concentration, persistence, or pace, and four or more extended
episodes of decompensation.
Id.
He also diagnosed Forquer with a
15
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
GAF
score
symptoms.6
The
of
50,
indicating
a
range
of
moderate
to
serious
Id.
ALJ
gave
inconsistencies
Dr.
within
Mages’s
the
opinion
opinion
(the
little
GAF
weight,
score
noting
reflected
moderate to serious symptoms, while Dr. Mages opined that Forquer
had marked and extreme limitations).
Id.
The ALJ also found Dr.
Mages’s opinion to be inconsistent with the evidence of record,
which allegedly supports the conclusion that Forquer is less
limited.
Id.
Dr. Logan and Dr. Allen, both of whom are state agency
psychological consultants, opined that Forquer had non-severe
mental impairments and mild limitations in her activities of daily
living, maintaining social functioning, maintaining concentration,
6
GAF, or Global Assessment of Functioning, refers to “a
clinician’s judgment of the individual’s overall level of
functioning.” Clemins v. Astrue, No. 5:13CV47, 2014 WL 4093424, at
*1 (W.D. Va. Aug. 18, 2014) (quoting the Am. Psychiatric Ass’n,
Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed.
2000). A GAF score “has no direct legal or medical correlation to
the severity requirements of social security regulations . . . ,”
but is “merely a snapshot of functioning at any given moment.” Id.
(internal citations and quotation marks omitted).
16
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
persistence,
or
pace,
and
had
decompensation (Dkt. No. 9-2 at 32).
no
extended
episodes
of
The ALJ gave these opinions
little weight because “the evidence of record, including the mental
health records and the claimant’s activities, support a finding
that the claimant’s mental health condition is severe.”
C.
Id.
Analysis
Forquer argues that the R&R improperly focused on the reasons
the ALJ discounted the evaluators’ opinions, and not on the fact
that the ALJ’s position is inconsistent with the opinions (Dkt. No.
18 at 1).
Forquer contends that the ALJ erred by discounting all
of the psychological opinions, and then relying on his own medical
interpretation to find that Forquer was not disabled.
Id. at 3–4.
An ALJ must consider medical opinions “along with the rest of
the relevant evidence” in a case.
20 C.F.R. § 404.1527(b) (2015).
With the exception of a treating physician’s opinion,7 the ALJ
7
Although inapplicable in this case, a treating physician’s
opinion is entitled to controlling weight so long as it is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques” and is consistent with the other evidence of
record. 20 C.F.R. § 404.1527(c)(2) (2015); Mastro v. Apfel, 270
F.3d 171, 178 (4th Cir. 2001).
17
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
considers the following factors in deciding what weight to give a
medical opinion: (1) the examining relationship; (2) the treatment
relationship;
specialization;
(3)
and
supportability;
(6)
other
(4)
consistency;
factors.
Id.
The
(5)
ALJ’s
determination as to the weight to be assigned to a medical opinion
“generally will not be disturbed absent some indication that the
ALJ has dredged up ‘specious inconsistencies,’ or has failed to
give a sufficient reason for the weight afforded a particular
opinion.”
Dunn v. Colvin, 607 F. App’x 264, 267 (4th Cir. 2015)
(internal citations omitted).
Forquer has failed to cite any case law in support of her
argument that the ALJ must give one of the medical opinions weight
in order to support his decision.
Rather, what the ALJ must
consider is the evidence of record, which “may contain medical
opinions.”
20 C.F.R. § 404.1527(a)(2).
If the evidence does
include medical opinions, the ALJ must consider “the medical
opinions in your case record together with the rest of the relevant
evidence we receive.”
20 C.F.R. § 404.1527(b).
18
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Of course, an ALJ cannot “succumb to the temptation to play
doctor” and make his own medical assessment.
Schmidt v. Sullivan,
914 F.2d 117, 118 (7th Cir. 1990); see also Wilson v. Califano, 617
F.2d 1050, 1053-54 (4th Cir. 1980) (holding that the ALJ may not
“dispense with vocational expert testimony in favor of his own
experience”).
Although the ALJ may decline to give physicians’
opinions controlling weight, the Court must determine whether
substantial
evidence
supports
his
decision.
See
Russell
v.
Barnhart, 58 F. App’x 25, 29–30 (4th Cir. 2003) (finding that the
ALJ did not supplant medical opinions with his own analysis when
the ALJ relied on the claimant’s testimony and statements and the
assessments of various mental treatment sources).
Here,
the
ALJ
crossed
the
line
between
considering
the
evidence of record and “playing doctor” by drawing his own medical
conclusions about Forquer’s mental impairments.
See Frank v.
Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (noting that the ALJ
impermissibly drew his own medical conclusions from the data
without an expert’s help).
With regard to Forquer’s psychological
impairments, the ALJ found that she suffers from bipolar disorder
19
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
and migraines (Dkt. No. 9-2 at 29).
He summarized the evidence of
record as follows:
Mental status examinations generally revealed appropriate
grooming, adequate hygiene, pleasant and cooperative
behavior, socially appropriate behavior, no involuntary
movements, fair to good eye contact, generally normal
psychomotor behavior, normal rate, rhythm, tone and
volume of speech, adequate communication skills, adequate
attention for conversation, no excessive distractibility,
normal, linear and goal directed thought processes, an
abstract conceptual ability, normal thought content, no
preoccupations, no hallucinations, no illusions, no
paranoia, no delusions, no psychosis, intact immediate
and recent memory, an intact attention span, normal
language, an ability to follow commands, an average fund
of information, normal persistence, normal pace, normal
to fair judgment, no homicidal ideations, intact to
“mildly” deficient concentration, fair to moderately
deficient insight, deficient remote memory, intermittent
suicidal ideations without a plan or intent, intermittent
tearfulness, occasionally rapid speech, euthymic,
equivocal, depressed, angry, frustrated and sad moods and
normal, broad, stable, “mildly” constricted and sad
affects.
Id.
He noted that Forquer was enrolled in a two-week outpatient
“partial
hospitalization
program”
in
August,
2012,
for
group
therapy, individual therapy, medication management, and symptom
improvement.
Id.
Nonetheless,
in
July,
2013,
Forquer
was
hospitalized for 10 days “after being found disoriented and crying
20
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
in the hospital.”
Id.
During her hospital stay, Forquer was
diagnosed with chronic migraines with visual aura.
Id.
At
discharge, a mental status examination revealed fair hygiene and
grooming, a good mood, a congruent and bright affect, no suicidal
or homicidal ideations, difficulty expressing herself but no formal
thought disorder, spontaneous speech with normal rate, volume, and
tone, fair insight, a fair “fund of knowledge,” fair impulse
control, and fair judgment.
Id.
The ALJ found that, despite Forquer’s bipolar disorder and
migraines, she retained the ability to perform the following
activities of daily life:
perform community service, prepare meals, do chores, use
public transportation, shop in stores, pay bills, count
change, handle a savings account, use a checkbook or
money order, read, watch television, work on puzzles, use
the internet, play games online, socialize online, visit
with friends, go to church weekly, live in a homeless
shelter around other people and maintain a romantic
relationship. . . .
Id.
He therefore concluded that Forquer “is less limited than
alleged.”
Id.
According to the ALJ, Forquer’s allegations “are
out of proportion to and inconsistent with the evidence of record
21
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
. . . , which “does not support [her] alleged symptoms and
limitations.”
Id.
He
contends
that
her
poor
work
history
“indicates a poor motivation to work and undermines the credibility
of her allegations.”
Id. at 30.
The ALJ discounted the opinions of Drs. Goudy and Mages by
relying on Forquer’s activities of daily living.
He gave Dr.
Goudy’s opinion little weight because Forquer is capable of “living
in a homeless shelter environment, performing community service,
using public transportation, managing her finances, shopping in
stores,
using
the
internet,
reading,
maintaining a romantic relationship.”
attending
Id.
church,
and
He discounted Dr.
Mages’s opinion for the same reasons, citing again to Forquer’s
activities of daily living.
Id. at 31–32.
Of particular concern,
the ALJ supplanted Dr. Mages’s GAF assessment of 50 or below with
his own assessment of Forquer’s capabilities, based again on her
activities of daily living.
Id. at 32.
On the other hand, the ALJ declined to rely on the opinions of
the two state psychological consultants Dr. Logan and Dr. Allen,
both of whom opined that Forquer did not suffer from a severe
22
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
impairment.
Id.
In a short paragraph, the ALJ simply stated that
these opinions are entitled to little weight because “the evidence
of record, including the mental health records and the claimant’s
activities, support a finding that the claimant’s mental health
condition is severe.”
Id.
The ALJ’s rejection of all four expert opinions begs the
question:
on what evidence did the ALJ rely?
Although he cites to
the evidence of record, he emphasizes Forquer’s activities of daily
living,
which
allegedly
unmotivated to work.
F. App’x at 267.
support
his
conclusion
This is legally insufficient.
that
she
is
See Dunn, 607
The ALJ cannot merely rely on activities of daily
living — just one of the special factors — to substitute his own
opinion for that of the experts.
(4).
See 20 C.F.R. § 404.1520(c)(3)-
In doing so here, he has failed to sufficiently explain how
he derived his opinion.
The Court therefore REJECTS the R&R as to
Forquer’s second claim and, pursuant to sentence four of 42 U.S.C.
§ 405(g), REVERSES the Commissioner’s decision and REMANDS the
claim for further proceedings.
III. Credibility
23
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Forquer argues that the ALJ erred by failing to address
evidence that contradicted his opinion about her credibility (Dkt.
No. 12 at 1, 9–12).
According to Forquer, the ALJ opined that she
quit jobs for no reason, but failed to address evidence that her
behavior “fits right in” with her severe bipolar and cognitive
disorders.
Id. at 9–10.
The R&R concluded that the ALJ’s opinion
was supported by substantial evidence (Dkt. No. 17 at 30–36).
Forquer objected, arguing that the ALJ failed to discuss evidence
that contradicts his position (Dkt. No. 18 at 5).
A.
Applicable Law
An ALJ determines whether a person is disabled by pain or
other symptoms using a two-step process.
Craig, 76 F.3d at 594.
First, objective medical evidence must exist showing a medical
impairment
resulting
from
anatomical,
physiological,
or
psychological abnormalities that “could reasonably be expected to
produce the pain or other symptoms alleged.”
Id. (quoting 20
C.F.R. § 416.929(b) (2011); 20 C.F.R. § 404.1529(b) (2011)); see
also Social Security Ruling 96-7p, 1996 WL 374186, at *2 (July 2,
1996) [hereinafter SSR 96-7p].
24
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
After the claimant makes this “threshold showing,” the ALJ
evaluates the credibility of the claimant’s subjective symptoms.
SSR 96-7p, 1996 WL 374186, at *2.
The ALJ must assess the
intensity, persistence, and limiting effects of the claimant’s
symptoms “to determine the extent to which the symptoms limit the
individual’s ability to do basic work activities.”
claimant’s
statements
functionally
limiting
about
the
effects
intensity,
of
pain
Id.
If the
persistence,
or
symptoms
are
or
unsubstantiated by objective medical evidence, the ALJ must “make
a finding on the credibility of those statements based on the
consideration of the entire case record,” including the medical
signs and laboratory findings, the claimant’s statements, any
statements
evidence.
by
medical
professionals,
and
any
other
relevant
Id.
When the ALJ needs additional information to assess the
claimant’s credibility, he must “make every reasonable effort to
obtain
available
credibility
of
information
the
that
individual’s
could
shed
statements”
and
light
consider,
addition to objective medical evidence, the following:
25
on
the
in
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
1.
2.
3.
4.
5.
6.
7.
The individual’s daily activities;
The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;
Factors
that
precipitate
and
aggravate
the
symptoms;
The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken
to alleviate pain or other symptoms;
Treatment, other than medication, the individual
receives or has received for relief of pain or
other symptoms;
Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a
board); and
Any other factors concerning the individual’s
functional limitations and restrictions due to pain
or other symptoms.
Id. at *3. Although the ALJ need not document specific findings as
to each factor, Wolfe v. Colvin, No. 3:14CV4, 2015 WL 401013, at *4
(N.D.W. Va. Jan. 28, 2015) (Groh, J.), his decision “must contain
specific reasons for the finding on credibility, supported by
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the
reasons for that weight.”
SSR 96-7p, 1996 WL 374186, at *2.
26
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
An
ALJ’s
credibility
determinations
are
“virtually
unreviewable” by this Court. Ryan v. Astrue, No. 5:09CV55, 2011 WL
541125, at *3 (N.D.W. Va. Feb. 8, 2011) (Stamp, J.) (quoting
Darvishian v. Geren, No. 08-1672, 2010 WL 5129870, at *9 (4th Cir.
2010)).
the
Because the ALJ observed the claimant’s demeanor during
administrative
hearing,
his
determination
credibility is to be given great weight.
regarding
her
Shively v. Heckler, 739
F.2d 987, 989 (7th Cir. 1997) (internal citations omitted).
B.
The ALJ’s Determination
The ALJ first determined that Forquer suffered from severe
medical
impairments
capable
of
causing
the
alleged
symptoms,
including bipolar disorder, migraines, degenerative arthritis,
chronic cervical and dorsolumbar strains with cervical degenerative
disc disease, and disc herniation at C4-5 (Dkt. No. 9-2 at 24, 28).
He then determined that Forquer’s statements about the intensity,
persistence,
and
limiting
effects
of
her
symptoms
were
“not
entirely credible,” utilizing the factors in SSR 96-7p. Id. at 28.
First, the ALJ considered Forquer’s daily activities, noting
that she has the ability to perform personal hygiene tasks, prepare
27
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
meals, complete chores, do laundry, perform community service, use
public transportation, shop in stores, work on puzzles, and use a
computer.
Id. at 29.
Second, the ALJ considered the location, duration, frequency,
and intensity of Forquer’s pain.
Forquer alleges that she suffers
from constant back or neck pain, headaches, and confusion, and
becomes overwhelmed when people talk to her.
Id. at 28.
He noted
that she occasionally suffers from giveaway weakness in her upper
right extremity.
Id.
Third,
ALJ
the
considered
factors
that
precipitate
and
aggravate Forquer’s symptoms, including lifting, bending, standing,
walking, sitting, climbing stairs, and completing tasks.
28.
Id. at
He noted that Forquer reported that she could lift less than
10 pounds, and could not sit for prolonged periods of time.
Fourth,
the
ALJ
considered
Forquer’s
pain
and
Id.
other
medications, which include Flexeril, Mobic, Naprosyn, Volaren,
Lorcet, Neurontin, Amitriptyline, a Medrol Dosepak, Prednisone,
Ultrams, Elavil, Lyrica, Zyprexa, and Remeron.
28
Id. at 28–29.
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Fifth, the ALJ considered Forquer’s treatment (aside from
medication) for pain and symptom relief.
Although Forquer was
referred to physical therapy, she only attended two sessions.
Id.
at 29. She received trigger point injections and cervical epidural
steroid injections, but has not pursued surgical options for her
spinal issues. Id. Forquer also enrolled in a two-week outpatient
partial hospitalization program in August of 2012 for group and
individual therapy, medication management, and symptom improvement.
Id.
Finally, the ALJ considered Forquer’s poor work history when
assessing her credibility.
Id. at 30.
He noted that Forquer
testified that she “quits jobs after a short period of time for no
particular reason . . .,” which “indicates a poor motivation to
work and undermines the credibility of her allegations.”
Id.
He
also noted that Forquer reportedly performs up to 20 hours of
community service per week as a condition of staying at the
Clarksburg Mission, further undermining her contention that she is
unable to work.
C.
Id.
Analysis
29
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Forquer points to several pieces of evidence that she claims
the ALJ ignored when rendering his opinion that she was not
credible (Dkt. No. 12 at 9–10).
An adult function report from
October 4, 2007, states that Forquer has always had difficulty with
authority figures, and has lost more than one job because she was
unable to get along with bosses and co-workers.
adult
disability
report
explains
that
Forquer
Tr. at 333.
struggles
An
with
retaining work:
States she cannot keep a job–she gets a job and then
after a few weeks she quits.
She states her mood
vascillates [sic] from severe depression to mania and she
cannot control her mood swings.
She states she has
difficulty working with young managers who try to make
changes, etc. She states that if she gets yelled at or
has a confrontation at work, she cannot handle it and
just quits. She feels she has no control over her mood
or her emotions and this prohibits her from working at
this time.
Tr. at 339.
In response to an inquiry from the Commissioner,
Forquer explained that she had worked as a cook for less than two
weeks in August, 2009, but that she quit because the stress of
cooking for over 300 people was too much and she couldn’t keep up.
Tr. at 362, 65.
On another disability report, Forquer reported
30
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
that she was unable to do her job due to stress because she has
trouble concentrating and remembering her job tasks.
Tr. at 378.
The ALJ need not discuss every piece of evidence in the record
or document specific findings as to each factor when rendering a
credibility determination.
Wolfe, 2015 WL 401013, at *4.
But he
must “consider the entire case record and give specific reasons for
the weight given to the individual’s statements.”
SSR 96-7p, 1996
WL 374186, at *4.
It is not this Court’s province to second-guess the ALJ’s
credibility determination. See Ryan, 2011 WL 541125, at *3. It is
its job, however, to ensure that the ALJ grounded his findings on
the record, and not an “intangible or intuitive notion about an
individual’s credibility.”
SSR 96-7p, 1996 WL 374186, at *4.
As
the R&R concluded, the ALJ clearly failed to address Forquer’s
contention that she is unable to keep a job because of her bipolar
and cognitive disorder (Dkt. No. 17 at 35–36).
The question is
whether this failure requires remand.
The Court concludes that it does.
The ALJ may not discuss
only the evidence that favors his conclusion.
31
Diaz v. Chater, 55
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
F.3d 300, 307 (7th Cir. 1995).
In failing to discuss the evidence
proffered by Forquer, which appears repeatedly within the record,
the ALJ has done just that.
He also glossed over several aspects
of Forquer’s hearing testimony.
Although not highlighted in Forquer’s brief and objections, at
the administrative hearing the ALJ asked Forquer why she had quit
numerous jobs over the years.
She testified that she had quit her
telemarketing job because “[i]t was just really hard to concentrate
and focus,” Tr. at 49, and that she had quit her job as a cashier
for the same reasons.
Tr. at 50.
The ALJ commented that she was
“never able to stick with a job for very long,” after which she
elucidated that she “had a lot of problems getting along with
people and remembering what [she] was supposed to be doing.”
Id.
She explained that she is unable to work now, and that, although
she was supposed to volunteer at the Mission for 20 hours per week,
she hadn’t been doing so because she was in grueling pain.
52.
Tr. at
Forquer testified that, at most, she volunteered for “maybe
10" hours per week.
Id.
32
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
The ALJ’s report concluded that Forquer “has a poor work
history and testified that she quits jobs after a short period of
time for no particular reason,” which indicates “a poor motivation
to work.” (Dkt. No. 9-2 at 30). He mentioned that Forquer performs
“up to 20 hours of community service per week as a condition of
staying at the Clarksburg Mission,” which, by indicating some
ability to work, undermines her allegations.
Id.
Based on a careful review of the evidence, the Court concludes
that the ALJ’s decision is not supported by substantial evidence.
Although the ALJ mentioned the factors in SSR 96-7p, he failed to
consider evidence that contradicted his opinion on credibility. As
a result, remand is necessary so the ALJ can assess the evidence
highlighted by Forquer.
The Court therefore REJECTS the R&R as to
Forquer’s credibility claim, REVERSES the Commissioner’s decision
under sentence four of 42 U.S.C. § 405(g)and REMANDS the claim for
further proceedings.
IV.
Cognitive Brain Disorder
Finally, Forquer contends that the ALJ erred by failing to
account for her severe cognitive brain impairment, which was
33
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
supported by objective MRI evidence (Dkt. No. 12 at 13–16).
The
R&R concluded that, even if the ALJ’s analysis was lacking,
substantial
evidence
supported
his
decision
that
Forquer’s
cognitive brain disorder is not a severe impairment (Dkt. No. 17 at
41).
Forquer objected, contending that the ALJ appears to have
relied on evidence from physicians to whose opinions he previously
gave little weight (Dkt. No. 18 at 6).
She argues that the R&R
relied on her activities of daily living to bolster the ALJ’s
position, even though the ALJ did not cite any of those activities
as a rationale for his decision.
Id. at 6–7.
Finally, she
contends that both the ALJ and the magistrate judge incorrectly
conflated Steps 2 and 3 of the five-step analysis.
A.
Id. at 7.
Applicable Law
At Step Two, the claimant bears the burden of establishing
that she suffers from a severe, medically determinable physical or
mental impairment that either is expected to result in death or has
lasted or is expected to last at least 12 months.
404.1520(a)(4)(ii);
Schweiker,
699
F.2d
20
C.F.R.
189,
191
§
404.1509
(4th
34
Cir.
20 C.F.R. §
(2015);
1983).
Grant
A
v.
“severe”
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
impairment is one that significantly limits the claimant’s physical
or mental abilities to perform basic work activities. 20 C.F.R. §§
404.1520(c), 416.920(c).
In the Fourth Circuit, an impairment can
be considered “not severe” “only if it is a slight abnormality
which has such a minimal effect on the individual that it would not
be expected to interfere with the individual’s ability to work,
irrespective of age, education, or work experience.”
Evans v.
Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984).
An impairment must result from abnormalities that can be shown
by
medically
techniques.
acceptable
clinical
and
laboratory
20 C.F.R. § 404.1508 (2015).
diagnostic
Mere diagnosis of a
condition is insufficient to prove disability; rather, the claimant
must show related functional loss.
See Gross v. Heckler, 785 F.2d
1163, 1165 (4th Cir. 1986).
As previously explained, when the claimant alleges a mental
impairment, the ALJ must follow the special technique, applying the
paragraph B criteria.
See 20 C.F.R. § 404.1520a(b); 20 C.F.R. Pt.
404, Subpt. P. App. 1, § 12.00(c)(1–4).
35
These include activities
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
of daily living, social functioning, concentration, persistence, or
pace, and episodes of decompensation.
B.
The ALJ’s Decision
At Step Two, the ALJ recognized that Forquer’s record included
a diagnosis of cognitive brain disorder and psychosis during her
July, 2013, hospital stay (Dkt. No. 9-2 at 24).
He decided that
these diagnoses were not severe impairments, however, stating as
follows:
[T]he undersigned rejects theses diagnoses as they are
not consistent with the longitudinal medical evidence of
record that shows the claimant was alert and oriented, a
generally intact memory, normal language, a normal fund
of information, normal thought processes, normal thought
content without preoccupations, no hallucinations, no
illusions, no paranoia and no delusions (Exhibit 17F/5,
19F/5, 20F/6, 24 F/11, 25 F/9, 26F, 32 F/8, 9, 10, 17,
24, 29, 35, 42, 48, 54, 60, 63, 69, 76, 82, 88, 94, 97,
98, 99).
Even at the time of hospitalization the
claimant did not report hallucinations, only her
significant other reported them (Exhibit 33F/15).
In
addition, at discharge the claimant did not demonstrate
any psychotic symptoms and showed fair insight, fair
impulse control, fair judgment and a fair fund of
knowledge (Exhibit 33F/2). Furthermore, full scale IQ
testing revealed a score of 77, indicating borderline
intellectual functioning, but her verbal IQ score was 98
and her performance on WRAT-4 testing was significantly
higher calling into question the validity of the full
scale IQ test results (Exhibit 26F).
Therefore, the
36
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
undersigned rejects the diagnoses of cognitive brain
disorder and psychosis.
Id. at 24–25.
In the Step 3 section of his report, the ALJ went
through the special technique, explaining that the Paragraph B
factors “are not a residual functional capacity assessment but are
used to rate the severity of mental impairments at steps 2 and 3 of
the sequential evaluation process.” Id. at 27. The ALJ considered
Forquer’s
mental
impairments,
singly
and
in
combination,
follows:
In activities of daily living, the claimant has mild
restriction.
She is independent in personal care
activities and is able to prepare meals, clean, do
laundry,
perform
community
service,
use
public
transportation, shop in stores for groceries and personal
items, pay bills, count change, handle a savings account,
use a checkbook or money order, read for pleasure, use
the internet, play games online, watch television and
attend church weekly (Hearing Testimony, Exhibit 18E,
243, 26F, 33F/39, 40). Thus, the evidence shows that the
claimant has mild restriction in her activities of daily
living.
In social functioning, the claimant has moderate
difficulties.
She
reported
difficulties
with
understanding and getting along with people and isolating
herself when she becomes angry. However, she lives in a
homeless shelter and is able to get along with the other
residents, spends time with people in the dining room and
reported being able to get along with friends, family,
37
as
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
neighbors and authority figures. She is also able to use
public transportation, shop in stores, go to church
weekly, socialize online by chatting with friends and
using Facebook, and maintain a romantic relationship
(Hearing Testimony, Exhibit 18E, 24E, 26F, 32F/33,
33F/39, 41).
In addition, mental status examinations
revealed pleasant and cooperative behavior, adequate
communication skills and fair to good eye contact
(Exhibit 26F, 32F/9, 17, 24, 29, 35, 42, 48, 54, 60, 63,
69, 76, 82, 88, 94, 97, 98, 99).
Thus, the evidence
shows that the claimant has moderate limitations in
social functioning.
With regard to concentration, persistence, or pace, the
claimant has moderate difficulties.
She reported
difficulties with remembering, confusion, understanding
and completing tasks. However, she is able to perform
community service, prepare meals, perform chores, do
laundry, use public transportation, shop in stores for
food and personal items, attend church, read, use the
internet, play online games, pay bills, count change,
handle a savings account, use a checkbook or money order,
work on puzzles and watch television (Hearing Testimony,
Exhibit 18E, 24E, 36F, 33F/39). Thus, the evidence of
record shows that the claimant had moderate difficulties
with concentration, persistence or pace.
As for episodes of decompensation, the claimant has
experienced no episodes of decompensation, which have
been of extended duration. The claimant was hospitalized
for 10 days in July of 2013 (Exhibit 33F/1). However,
this hospitalization was not of extended duration.
Id. at 26.
38
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
The ALJ’s only mention of Forquer’s MRI occurs in his Steps 4
and 5 analysis, where he finds that Forquer has the residual
functional
capacity
limitations.
“revealed
to
Id. at 27.
nonspecific
perform
light
work,
with
There, he notes that Forquer’s MRI
white
matter
signal
changes
electroencephalogram was normal (Exhibit 33F/5, 8).”
C.
certain
and
an
Id. at 29.
Analysis
Forquer highlights objective evidence establishing that she
suffers from white matter changes in her brain that cause a
cognitive impairment (Dkt. No. 12 at 13).
She argues that Dr.
Mages found her to have cognitive impairments that cause “marked
problems with social functioning and concentration, pace, and
persistence.
Id. at 14 (citing Tr. at 994–97).
She also points to
a February 13, 2012, Social Security Administration Psychological
Evaluation by Dr. Marvin Levin, which indicated that she has severe
remote memory problems, difficulty handling finances, processing
speed difficulties, confusion, and psychosis.
39
Id. (citing Tr. at
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
820–24). Forquer further references Dr. Mages’s discharge summary,
which notes that white matter changes in her brain could be causing
memory loss.
Id. (citing Tr. at 950–51).
Finally, she contends
that Dr. Goudy noted marked memory problems.
Id. (citing Tr. at
1016).
As an initial matter, the ALJ did consider the exhibits
highlighted by Forquer. The ALJ discussed Dr. Levin’s examination,
which Forquer cites for the proposition that she becomes confused
easily and has memory problems, before explaining that her test
results were inconsistent and therefore not reliable (Dkt. No. 9-2
at 25).
The ALJ also considered Dr. Mages’s discharge report,
noting that an MRI shows white matter changes.8
Id. at 29.
In her objections, Forquer transforms her argument that the
ALJ failed to consider the objective medical evidence (Dkt. No. 12
8
Interestingly enough, part of the discharge summary not
cited by Forquer supports the ALJ’s decision.
It reads, in
relevant part, that Forquer’s “MRI did show periventricular white
matter changes. Neurology was consulted, but felt that this was
not contributory to her presenting symptoms; however, did think
that with the small white ischemic changes, as well as history of
multiple head injuries, that perhaps this is causing her current
memory loss and difficulty with change.” Tr. at 951.
40
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
at 13–14), into one that the ALJ improperly relied on the opinions
of physicians to which he accorded little weight (Dkt. No. 18 at
6).
Both arguments are unavailing.
As mentioned earlier, the ALJ
did consider the objective medical evidence cited by Forquer.
Also, a distinction exists between the opinions of Dr. Mages and
Dr. Goudy (to which the ALJ accorded little weight) and the results
of the objective medical tests they performed (which the ALJ
appeared to consider).
This is not a distinction without a
difference; the ALJ appears to have considered the medical tests
performed by Dr. Mages before discrediting his opinion on the
special factors, finding that it was unsupported by the medical
evidence (Dkt. No. 9-2 at 29, 31). Nor is this ruling inconsistent
with the Court’s earlier finding that substantial evidence did not
support the ALJ’s decision to discredit all four experts’ opinions,
making it unclear on which opinion he relied.
Forquer’s second objection, that the magistrate judge erred by
citing to her activities of daily living, is also unavailing (Dkt.
No. 18 at 6–7).
As previously mentioned, the ALJ referenced
Forquer’s activities of daily living during his analysis of the
41
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
Paragraph B criteria (Dkt. No. 9-2 at 26).
criteria to Steps 2 and 3.
Id. at 27.
He applied those
It was therefore proper for
the magistrate judge to use the activities of daily living when
considering whether any error was harmless.
Finally, Forquer contends that the ALJ and the magistrate
judge conflated the Steps 2 and 3 analysis (Dkt. No. 18 at 7).
The
way the ALJ structured his decision is confusing; Steps 2 and 3 are
set forth in different sections, but the analysis that applies to
both steps only appears under the Step 3 heading. Nonetheless, any
error in this respect is harmless because it is clear that it “was
inconsequential
to
the
ultimate
nondisability
determination.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
Forquer contends that the ALJ’s error was not harmless because
acceptance of the medical evidence of white matter changes could
bolster her credibility.
Perhaps it could.
The Court’s role,
however, is merely to determine whether the ALJ’s decision is
supported
by
substantial
evidence,
not
to
decide
interpretation of the medical evidence is more persuasive.
Mayer, 662 F.3d at 704; Mutual Mining, Inc. 80 F.3d at 113.
42
which
See
Here,
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
the ALJ’s decision that Forquer’s cognitive brain disorder was not
severe is supported by substantial evidence.
The Court therefore
ADOPTS the recommendation of the magistrate judge as to Forquer’s
cognitive brain disorder claim and GRANTS the Commissioner’s motion
for summary judgment as to that claim.
CONCLUSION
After careful consideration of the parties’ arguments and for
the reasons discussed, pursuant to sentence four of 42 U.S.C. §
405(g) and § 1383(c)(3), the Court ADOPTS IN PART AND REJECTS IN
PART the R&R (Dkt. No. 17), REVERSES the Commissioner’s decision,
and REMANDS this case to the Commissioner for further proceedings
in accord with this Memorandum Opinion and Order.
Specifically,
the Court
1.
OVERRULES Forquer’s objections as to the reopening and
cognitive brain disorder claims
2.
(Dkt. No. 18);
GRANTS IN PART the Commissioner’s motion for summary
judgment regarding her cognitive brain disorder and
reopening claims;
43
FORQUER V. COMMISSIONER OF SOCIAL SECURITY
1:15CV57
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DKT. NO. 17], REVERSING THE COMMISSIONER’S
DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND
§ 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER
3.
SUSTAINS Forquer’s objections to the R&R’s findings as to
her psychological opinion and credibility claims;
4.
GRANTS IN PART Forquer’s motion for summary judgment by
REVERSING the Commissioner’s decision under sentence four
of 42 U.S.C. 405(g); and
5.
REMANDS Forquer’s psychological opinion and credibility
claims to the Commissioner for further proceedings in
accord with this Memorandum Opinion and Order.
The Court further DIRECTS that this case be STRICKEN from the
active docket of this Court.
It is so ORDERED.
The Court DIRECTS the Clerk of Court to transmit copies of
this Memorandum Opinion and Order to counsel of record, and to
enter a separate judgment order.
DATED:
August 11, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
44
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