Reynolds v. Commissioner Of Social Security Administration
Filing
17
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND RECOMMENDATION 14 , REVERSING THE COMMISSIONERS DECISION UNDER SENTENCE FOUR OF 42 U.S.C. § 405(g) AND § 1383(c)(3), AND REMANDING THE CASE TO THE COMMISSIONER: The Court REJECTS the R&Rs recommendation regarding the ALJs credibility determinationand, pursuant to sentence four of 42 U.S.C. § 405(g), REVERSES the Commissioners decision and REMANDS the claim for further proceedings. The Court REJECTS the R&R 14 ; 2) GRANTS Reynold ss motion for judgment on the pleadings 9 ; DENIES the Commissioners motion for summary judgment 11 ; REVERSES the Commissioners decision under sentence four of 42 U.S.C. § 405(g) and § 1383(c)(3); and REMANDS this case to the Commissio ner for furtherproceedings. The Court DIRECTS the Clerk of Court to enter a separate judgment order. The Court further DIRECTS that this case be STRICKEN from the active docket of this Court. Signed by District Judge Irene M. Keeley on 3/24/17. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KAREN SUE REYNOLDS,
Plaintiff,
v.
CIVIL ACTION NO. 1:16CV29
(Judge Keeley)
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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 February 24, 2016, the plaintiff, Karen Sue Reynolds
(“Reynolds”), filed a complaint seeking review of the adverse
decision of the defendant, Nancy A. Berryhill, Acting Commissioner
of Social Security (“the Commissioner”) (Dkt. No. 1). On January
25, 2017, the Honorable Michael J. Aloi, United States Magistrate
Judge, issued a Report and Recommendation (“R&R”), recommending
that
the
Court
deny
Reynolds’s
motion
for
judgment
on
the
pleadings, grant the Commissioner’s motion for summary judgment,
affirm the Commissioner’s decision, and dismiss this case with
prejudice (Dkt. No. 14). Reynolds filed timely objections to the
R&R (Dkt. No. 15).
After
considering
objections, the Court
the
record,
REJECTS
as
well
as
Reynolds’s
the R&R (Dkt. No. 14),
GRANTS
Reynolds’s motion for judgment on the pleadings (Dkt. No. 9),
DENIES the Commissioner’s motion for summary judgment (Dkt. No.
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
11), REVERSES the Commissioner’s decision under sentence four of 42
U.S.C. § 405(g) and § 1383(c)(3), and REMANDS Reynolds’s treating
physician
and
credibility
claims
to
the
ALJ
for
further
proceedings.
I. BACKGROUND
The Court has jurisdiction over this case pursuant to 42
U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). As part of its review
of the R&R, the Court incorporates by reference Magistrate Judge
Aloi’s thorough recitation of the facts surrounding Reynolds’s
disability insurance benefits (“DIB”) and supplemental security
income
(“SSI”)
claims,
as
well
as
his
articulation
of
the
Commissioner’s five-step evaluation process (Dkt. No. 14 at 2-23).
Reynolds was born on February 18, 1963, and was 49 years old
at the time she filed her DIB and SSI claims on June 6 and June 18,
2012, respectively (Dkt. No. 7-5 at 15). She initially alleged a
disability onset date of March 1, 2009, but later amended that date
to April 1, 2011. Id. at 17. At the time, she was unemployed, but
had previously worked as an assistant manager at Family Dollar.
She had also worked as a cashier at a convenience store, a cook, a
nursing home aide, and a hotel front desk clerk (Dkt. No. 7-6 at
2
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
4). Reynolds alleged that a number of limitations prevented her
from
working,
including
congestive
heart
failure,
rheumatoid
arthritis, knots in her arms and legs, and depression. Id. at 3.1
Reynolds also indicated a history of sometimes passing out and
going into convulsions (Dkt. No. 7-6 at 9).
The Commissioner denied Reynolds’s claims at both the initial
and reconsideration levels (Dkt. No. 1 at 1). Upon Reynolds’s
request, Administrative Law Judge Brian W. Wood (“ALJ”) held a
hearing on April 1, 2014, following which he denied Reynolds’s
claim (Dkt. No. 7-2 at 18, 32). Reynolds appealed the ALJ’s
decision to the Appeals Council, which declined review on January
5, 2016 (Dkt. Nos. 1 at 1; 7-2 at 2).
Thereafter, on February 24, 2016, Reynolds filed suit in this
Court, seeking reversal of the Commissioner’s final decision (Dkt.
No.
1
at
1).
In
her
complaint,
1
Reynolds
argued
that
the
Ultimately, the Administrative Law Judge identified the
following severe impairments: degenerative disc disease of the
cervical spine, scoliosis of the thoracic spine, chronic cervical
and lumbar strain, chronic obstructive pulmonary disease,
cardiomyopathy, premature ventricular complex, hypertension, gastro
esophageal reflux disease, history of syncope, poly-articular
arthritis, rheumatoid arthritis, headaches, and a depressive
disorder (Dkt. No. 7-2 at 21). Reynolds has not challenged this
step-two determination.
3
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
Commissioner committed reversible error by (1) failing to comply
with 20 C.F.R. §§ 404.1527 and 416.927 when he assigned “little
weight” to the medical opinion of her treating physician Stephen
Thompson,
D.O.
(“Dr.
Thompson”),
and
(2)
making
a
deficient
credibility determination, which rendered his decision unsupported
by substantial evidence (Dkt. No. 10 at 14, 18).
In
the
R&R,
Magistrate
Judge
Aloi
rejected
Reynolds’s
contentions (Dkt. No. 14). First, he found substantial evidence to
support
the
ALJ’s
decision
to
afford
little
weight
to
Dr.
Thompson’s opinion, and also found that the ALJ had sufficiently
explained his decision so as to permit meaningful review. Id. at
34. Second, he found that the ALJ had properly assessed Reynolds’s
credibility, and had supported his determination with substantial
evidence. Id. at 34-37.
Reynolds filed timely objections to the R&R, in which she
argued that Magistrate Judge Aloi improperly supplied a post hoc
rationalization for the ALJ’s rejection of Dr. Thompson’s opinion
(Dkt. No. 15 at 2-4). In addition, she argued that the magistrate
judge's conclusion that the ALJ’s credibility determination was
valid was erroneous. (Dkt. No. 15 at 4-5).
4
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
II. STANDARDS OF REVIEW
A.
The Magistrate Judge’s R&R
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court must review
de novo any portion of the magistrate judge’s recommendation to
which objection is timely made. The Court, however, will uphold
those portions of the R&R to which no objection is made unless they
are “clearly erroneous.” See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Because Reynolds filed
objections to the R&R (Dkt. No. 15), this Court will review de novo
all those portions of the R&R to which she has objected.
B.
The ALJ’s Decision
The question presented is not whether Reynolds is disabled.
See Mayer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (citing
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). Judicial review
of a final decision regarding disability benefits is limited to
determining whether the ALJ’s findings are supported by substantial
evidence, and whether the ALJ correctly applied the law. See 42
U.S.C. § 405(g); Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528
(4th Cir. 1998). It is the duty of the ALJ, not the Court, to make
5
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
findings of fact and resolve disputed evidence. King v. Califano,
599 F.2d 597, 599 (4th Cir. 1979).
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 omitted)). That “two
inconsistent conclusions” may be drawn “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 omitted)).
“An ALJ may not select and discuss only that evidence that
favors his ultimate conclusion, but must articulate, at some
minimum level, his analysis of the evidence to allow the appellate
court to trace the path of his reasoning. An ALJ's failure to
consider an entire line of evidence falls below the minimal level
. . . .” Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995) (internal
citation omitted). The Court must be able to “track the ALJ’s
reasoning and be assured that the ALJ considered the important
6
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
evidence.” Id. at 308 (quoting Green v. Shalala, 51 F.3d 96, 101
(7th Cir. 1995)).
III. DISCUSSION
A.
Dr. Thompson’s Opinion
Reynolds contends that the Court must remand this case because
the ALJ failed to conduct a proper analysis or provide “good
reasons” for discounting the medical opinion of Dr. Thompson, her
treating physician (Dkt. No. 10 at 10-14). In his R&R, Magistrate
Judge Aloi concluded that the ALJ’s decision was supported by
substantial evidence, especially evidence from the “particular
category” on which he relied (Dkt. No. 14 at 29). Moreover, he
concluded that the ALJ’s explanation was sufficient to permit the
Court to conduct a meaningful review. Id. at 34.
Reynolds contends the magistrate judge improperly “searched
the administrative record and found other evidence which he (deems
substantial) and which (he determines) supported the ALJ’s finding,
even though the ALJ, himself, did not cite that evidence in support
of
his
decision”
(Dkt.
No.
15
at
2).
She
accuses
both
the
Commissioner and the magistrate judge of providing a post hoc
7
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
rationale for the ALJ’s decision when, in fact, the duty to provide
sufficient reasoning rested with the ALJ. Id. at 3.
1.
Applicable Law
If a claimant’s severe impairments neither meet nor equal the
severity of a listed impairment, as was the undisputed step-three
determination in this case, the ALJ must then assess the claimant’s
residual functional capacity (“RFC”).2 20 C.F.R. § 404.1520(e). The
ALJ determines the claimant’s RFC “based on all the relevant
medical and other evidence,” id., including medical opinions. Id.
§ 404.1527(b). “Medical opinions are statements from acceptable
medical
sources
that
reflect
judgments
about
the
nature
and
severity” of a claimant’s “impairment(s), including [her] symptoms,
diagnosis,
or
prognosis,
what
[she]
can
still
do
despite
impairment(s), and [her] physical or mental restrictions. Id.
§ 404.1527(a)(1).
2
A claimant’s RFC “is the most [she] can still do despite
[her] limitations.” 20 C.F.R. § 404.1545. It is also described as
“an assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a
regular and continuing basis. A ‘regular and continuing basis’ means
8 hours a day, for 5 days a week, or an equivalent work schedule.”
Social Security Ruling 96-8p, 61 Fed.Reg. 34,474, 34,478 (July 2,
1996) [hereinafter SSR 96-8p].
8
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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 treating physician’s opinion is entitled to controlling
weight so long as it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques,” and is consistent
with the other evidence of record. Id. § 404.1527(c)(2); Mastro v.
Apfel, 270 F.3d 171, 178 (4th Cir. 2001). When a medical opinion is
not entitled to controlling weight, the ALJ should consider the
following factors in deciding what weight to assign: (1) the
examining relationship; (2) the length, frequency, nature, and
extent of the treatment relationship; (3) supportability; (4)
consistency; (5) specialization; and (6) other factors. 20 C.F.R.
§ 404.1527(c). Ultimate conclusions as to whether a claimant is
“disabled” or “unable to work” are categorically reserved to the
Commissioner. Id. § 404.1527(d)(1).
The Commissioner abides by the following guidance:
The 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,
observations).
SSR 96-8p, 61 Fed.Reg. at 34,478. This guidance obligates the ALJ
to provide more than mere “conclusory analysis” when assigning
weight to medical opinions. Monroe v. Colvin, 826 F.3d 176, 191
9
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
(4th Cir. 2016); see also SSR 96-8p, 61 Fed.Reg. at 34,478 (“If the
RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.”).
Although the ALJ may decline to give an opinion weight, it is
for the Court to determine whether substantial evidence supports
his decision. See Russell v. Barnhart, 58 Fed. App’x 25, 29–30 (4th
Cir. 2003). The 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 Fed. App’x 264, 267 (4th
Cir. 2015) (internal citations omitted). The ALJ must reach a
conclusion that appears rational to the Court. Id. at 266; see also
Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (reasoning
that an ALJ may not “succumb to the temptation to play doctor”).
2.
As
ALJ’s Decision
Reynolds
points
out,
“[t]he
record
is
replete
with”
treating physician “Dr. Thompson’s treatment notes over the years,
results
of
testing
he
had
ordered,
and
letters/reports
from
specialists to whom he had referred Ms. Reynolds” (Dkt. No. 10 at
10
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
13) (internal citation omitted). Dr. Thompson treated Reynolds
dating back to 2008, and indicated in his notes that he saw her
every three to six months (Dkt. Nos. 7-8 at 47; 7-14 at 21).
The ALJ summarized some of Reynolds’s treatment history with
Dr. Thompson, but ultimately discounted Thompson's RFC opinion:
A physical residual functional capacity questionnaire
dated March 19, 2014[,] by Dr. Thompson indicated that
the claimant had post-partum cardiomyopathy, rheumatoid
arthritis, COPD, and hypertension and that her prognosis
was fair. She experienced fatigue and shortness of breath
as well as pain. Dr. Thompson noted that the claimant’s
experience of pain or other symptoms were constantly
severe
enough
to
interfere
with
attention
and
concentration needed to perform even simple work tasks
and that she was incapable of even “low stress” jobs. Dr.
Thompson indicated that the claimant could sit, stand,
and walk less than two hours in an eight-hour workday and
would have to walk around every 20-30 minutes for 3-5
minutes each time. She would require a job that permitted
shifting positions and she would need to take unscheduled
breaks during an eight-hour workday. Dr. Thompson noted
that the claimant could occasionally lift/carry 10
pounds, look up, and hold head in static position. She
could occasionally twist and climb stairs, rarely stoop,
bend, crouch and squat, but could never climb ladders and
would miss more than four days of work per month. Dr.
Thompson opined that the claimant was not capable of
working a full time work schedule at any level of
exertion (Exhibit C-19F). The undersigned has afforded
this opinion little weight as it is not supported by the
evidence of record, including objective medical findings
and good activities of daily living.
(Dkt. No. 7-2 at 30) (emphasis added).
11
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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.
Analysis
Dr. Thompson appears to be the only treating physician who
provided an opinion to the Commissioner regarding Reynolds’s RFC.
And as Reynolds's treating physician, his opinion is entitled to
controlling weight unless it “is not supported by clinical evidence
or . . . is inconsistent with other substantial evidence.” Sharp v.
Colvin, 660 Fed. App’x 251, 256 (4th Cir. 2016) (unpublished
decision) (quoting Craig, 76 F.3d at 590). Here, the ALJ provided
only
a
cursory
dismissing
it
discussion
as
of
Dr.
“[un]supported
by
Thompson’s
the
opinion
evidence
of
before
record,
including objective medical findings and good activities of daily
living” (Dkt. No. 7-2 at 30). In doing so, the ALJ “failed to give
a
sufficient
reason
for
the
weight
afforded”
Dr.
Thompson’s
opinion. Dunn, 607 Fed. App’x at 267.
It is difficult to distinguish this case from the recent
decision of the Fourth Circuit in Monroe v. Colvin, where our
circuit court criticized an ALJ's failure to provide “the specific
analysis that would allow for meaningful review,” including “a
discussion of which evidence the ALJ found credible and why, and
specific application of the pertinent legal requirements to the
12
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
record evidence.”
826 F.3d at 189 (quoting Radford v. Colvin, 734
F.3d 288, 295 (4th Cir. 2013)). Our circuit court pointed out in
Monroe
that
the
ALJ
had
failed
to
provide
any
“narrative
discussion” as part of his explanation for the weight he gave to
various opinions. Id. at 190. For instance, he assigned weight
based only on “the objective evidence,” “the objective evidence or
the claimant’s treatment history,” and “the objective evidence and
other opinions of record.” Id. at 191. Given this inadequate
explanation, the Fourth Circuit concluded that, “[w]ithout more
specific explanation of the ALJ’s reasons for the differing weights
he assigned various medical opinions, neither we nor the district
court can undertake meaningful substantial-evidence review.” Id.
(citing Radford, 734 F.3d at 295).3
The ALJ’s reasoning in this case is similarly deficient. In
his
conclusory
dismissal
of
Dr.
3
Thompson’s
opinion,
the
ALJ
In Sharp v. Colvin, the Fourth Circuit upheld an ALJ’s
limited discussion of the weight given to a treating physician’s
opinion. 660 Fed. App’x at 257. Unlike Monroe or the present case,
however, the ALJ provided a “specific reason . . . sufficient to
afford . . . appellate review” by identifying and relying on a
“particular category of evidence” - the treating physician’s own
office notes. Id. The notes contained in the record provided
substantial evidence for the ALJ’s decision. No such specific
category of evidence was identified by the ALJ in this case.
13
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
provided little explanation for the “some weight” or “significant
weight” he gave to other opinions. State agency examiners Joseph
Shaver, Ph.D., and Jeff Harlow, Ph.D., opined that Reynolds’s
affective disorder was not severe. The ALJ “afforded these opinions
some weight, but . . . added limitations based on other evidence in
the file and the claimant’s testimony” (Dkt. No. 7-2 at 29). State
agency examiners Fulvio Franyutti, M.D., and Pedro Lo, M.D.,
provided RFC opinions to which the ALJ gave “significant weight as
they [were] consistent with the medical evidence of record.” Id. at
30. He did, however, “add[] some limitations based on other
evidence.” Id.
Without having more “specific reasons” for the weight given by
the ALJ to these medical opinions, the Court’s only option is to
review the record in search of evidence that supports the ALJ’s
decision. This task, however, exceeds the scope of the Court’s
appellate review and is committed to the Commissioner. Jackson v.
Colvin, No. 3:14cv24834, 2015 WL 5786802, at *2 (S.D.W. Va. Sept.
30, 2015) (“It is not the role of the courts to search for reasons
for a decision that were not furnished by the ALJ.”). The ALJ may
have summarized and discussed the medical evidence and activities
14
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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 elsewhere in his decision (Dkt. No. 7-2 at 24-29),
but he failed to “build an accurate and logical bridge from the
evidence to his conclusion[s]” regarding the medical opinions.
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000); accord
Forquer v. Colvin, No. 1:15cv57, 2016 WL 4250364, at *8 (N.D.W. Va.
Aug. 11, 2016) (holding that an ALJ “failed to sufficiently explain
how he derived his opinion” when he discounted all opinion evidence
on
the
basis
of
the
evidence
of
record
and
the
claimant’s
activities of daily living).
Because the ALJ failed to provide sufficient reasoning to
permit meaningful review of the weight he assigned to various
medical opinions, the Court REJECTS the recommendation that the
Court reject Reynolds’s argument regarding opinion evidence, and
pursuant to sentence four of 42 U.S.C. § 405(g), REVERSES the
Commissioner’s
decision
and
REMANDS
the
claim
for
further
proceedings.
B.
Credibility Determination
Reynolds next argues that the ALJ’s credibility determination
was deficient (Dkt. No. 10 at 14-18). She contends that the ALJ
improperly compared her allegations to the RFC, relied too much on
15
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
objective medical evidence, and analyzed only one relevant factor activities of daily living - while ignoring much of her testimony.
Id. Magistrate Judge Aloi concluded that, although the ALJ had
erred when he compared Reynolds’s symptoms to the RFC, such error
was harmless because he had provided substantial evidence in the
form of medical records and Reynolds’s activities of daily living
(Dkt. No. 14 at 35-37). Reynolds objects 1) that the ALJ relied too
heavily on objective medical evidence, and 2) that the magistrate
judge inappropriately made “forays into the administrative record”
in search of evidence to support the ALJ’s decision (Dkt. No. 15 at
4-5).
1.
Applicable Law
An ALJ uses a two-step process when determining whether a
person is disabled by pain or other symptoms. Craig, 76 F.3d at
594. In the first step, objective medical evidence must exist
demonstrating 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. §§ 404.1529(b), 416.929(b)(2011));
16
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
see also Social Security Ruling 96-7p, 1996 WL 374186, at *2 (July
2, 1996) [hereinafter SSR 96-7p].
After the claimant makes this “threshold showing,” the ALJ
next
must
evaluate
the
claimant’s
credibility
regarding
her
subjective symptoms. SSR 96-7p, 1996 WL 374186, at *2. In this
second step, 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.” Id. If the claimant’s statements about the
intensity, persistence, or functionally limiting effects of pain or
symptoms are 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,
statements
by
medical
professionals,
and
any
other
relevant
evidence. Id.
In addition to objective medical evidence, the ALJ must
consider
the
following
factors
when
assessing
credibility:
1.
The individual’s daily activities;
17
a
claimant’s
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
2.
The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;
3.
Factors
that
symptoms;
4.
The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken
to alleviate pain or other symptoms;
5.
Treatment, other than medication, the individual
receives or has received for relief of pain or
other symptoms;
6.
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
7.
Any other factors concerning the individual’s
functional limitations and restrictions due to pain
or other symptoms.
precipitate
and
aggravate
the
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
18
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2.
An
ALJ’s
credibility
determinations
are
“virtually
unreviewable.” 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)). Because it is
the
ALJ
who
observed
the
claimant’s
demeanor
during
the
administrative hearing, his determination regarding credibility is
to be given great weight. Shively v. Heckler, 739 F.2d 987, 989
(7th Cir. 1997) (internal citations omitted).
2.
ALJ’s Decision
As a threshold matter, the ALJ determined that Reynolds’s
“medically determinable impairments could reasonably be expected to
cause the alleged symptoms” (Dkt. No. 7-2 at 28). He nonetheless
concluded
that
her
“statements
concerning
the
intensity,
persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with the above residual
functional
capacity
assessment.”
Id.
at
28-29.
He
further
determined that “medical records” and the “preponderance of the
evidence” were inconsistent with Reynolds’s testimony of severe
19
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
symptoms. Id. In support, the ALJ described various inconsistencies
between Reynolds’s subjective complaints and her medical records
that, in large measure, included normal and unremarkable findings.
Id. at 29.4
Other than the objective medical evidence, the ALJ considered
only the following:
In addition, claimant’s daily activities are not limited
to the degree expected if her testimony regarding her
functional limitations was accurate. The claimant
testified that she takes care of her personal needs. She
stated that she has a driver’s license and drives and
takes college classes online and at the community
college. Additionally, she testified that she watches
television, sews, does the laundry, performs household
chores, prepares meals, grocery shops and reads.
Considering all these factors, and the adverse medical
opinions of Drs. Franyutti, Lo, Shaver, and Harlow, the
claimant’s testimony was not credible.
Id.
3.
Analysis
The
Fourth
Circuit
recently
counseled
against
reasoning
similar to that employed by the ALJ in this case. In Mascio v.
Colvin, the ALJ reasoned that “the claimant’s statements concerning
4
The ALJ concluded that the results of various tests, studies,
and X-rays did not support Reynolds’s complaints of hypertension,
shortness of breath, joint, back, neck, hand, and foot pain, and
depression (Dkt. No. 7-2 at 29).
20
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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 intensity, persistence and limiting effects of [his] symptoms
are not credible to the extent they are inconsistent with the above
residual functional capacity assessment.” 780 F.3d 632, 639 (4th
Cir.
2015).
According
“boilerplate”
language
to
our
implies
circuit
“that
the
court,
ability
this
to
flawed
work
is
determined first and is then used to determine the claimant’s
credibility.” Id. (quoting Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012)). On the contrary, the claimant’s allegations of
pain must be considered as a part of the ALJ’s RFC determination,
not simply and summarily refuted by it. Such boilerplate statements
can, nonetheless, be considered harmless error if the ALJ has
properly analyzed credibility elsewhere in his decision. Id.
As the magistrate judge recognized, the ALJ undoubtedly erred
when he used the “boilerplate” criticized in Mascio and compared
Reynolds’s testimony to the RFC. The ALJ reasoned that Reynolds’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [were] not credible to the extent they
[were] inconsistent with the . . . [RFC] assessment” (Dkt. No. 7-2
at
28-29).
The
question,
however,
is
whether
such
error
is
harmless. Mascio, 780 F.3d at 639. Because the ALJ failed to
21
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
conduct a full and proper credibility analysis elsewhere in his
decision, the Court concludes it is not.
Although the ALJ fully explained how Reynolds’s “disability is
not documented” in the objective medical evidence (Dkt. No. 7-2 at
29),
the
lack
of
objective
proof
of
disability
is
not
determinative. Hines v. Barnhart, 453 F.3d 559, 564-65 (4th Cir.
2006) (“Having met his threshold obligation of showing by objective
medical evidence a condition reasonably likely to cause the pain
claimed, Mr. Hines was entitled to rely exclusively on subjective
evidence.”).
In
assessing
the
evidence
regarding
Reynolds’s
disability claim, the ALJ failed to address many of the specific
factors
that
the
Commissioner
instructs
he
must
take
under
advisement when objective medical evidence does not substantiate
the alleged limitations. SSR 96-7p, 1996 WL 374186, at *2.
Notably, the ALJ only discussed one specific factor Reynolds’s activities of daily living (Dkt. No. 7-2 at 29).5 But
5
The ALJ also reasoned that Reynolds was not credible in light
of “the adverse medical opinions of Drs. Franyutti, Lo, Shaver, and
Harlow” (Dkt. No. 7-2 at 29). This is another “factor[] concerning
[Reynolds’s] functional limitations and restrictions” that the ALJ
is entitled to consider. SSR 96-7p, 1996 WL 374186, at *3. As
already discussed, however, the ALJ failed to provide sufficient
reasoning for the weight that he gave these opinions. Monroe, 826
F.3d at 190-91. Without further explanation, the opinions provide
22
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
even that brief discussion amounted to a mere listing of what
Reynolds testified she is able to do. It never addressed the extent
or frequency to which she testified those same activities are
limited, or that she required assistance to accomplish them. Id. at
49, 57-58, 60; Diaz, 55 F.3d at 307 (“An ALJ may not select and
discuss only that evidence that favors his ultimate conclusion . .
. .”).
Of course, the Court is bound to give great deference to the
ALJ’s credibility determination. See 42 U.S.C. § 405(g); Ryan, 2011
WL
541125,
at
*3.
In
this
case,
however,
the
ALJ’s
cursory
discussion of one specific factor fails to satisfy his burden of
providing an explanation sufficient for meaningful review. The ALJ
must include “an accurate and logical bridge from the evidence to
his conclusion” that Reynolds was not credible, Monroe, 826 F.3d at
189, and he must bear in mind that the objective medical evidence
is not determinative.6
an insufficient basis on which to discount the credibility of
Reynolds’s testimony.
6
As the Fourth Circuit has elaborated, this does not mean that
objective medical evidence is not important. It simply means that
“a claimant’s allegations about her pain may not be discredited
solely because they are not substantiated by objective evidence of
the pain itself or its severity.” Hines, 453 F.3d at 565 n.3
23
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
To sum up, the ALJ erroneously compared Reynolds’s subjective
allegations to the RFC determination and otherwise failed properly
to assess Reynolds’s credibility. Therefore, the Court REJECTS the
R&R’s recommendation regarding the ALJ’s credibility determination
and, pursuant to sentence four of 42 U.S.C. § 405(g), REVERSES the
Commissioner’s
decision
and
REMANDS
the
claim
for
further
proceedings. On remand, should the ALJ reject Reynolds’s subjective
allegations, it will be incumbent upon him to thoroughly analyze
the relevant factors and explain in greater detail his reasons for
discrediting those allegations.
IV. CONCLUSION
For the reasons discussed, the Court:
1)
REJECTS the R&R (Dkt. No. 14);
2)
GRANTS Reynolds’s motion for judgment on the pleadings
(Dkt. No. 9);
3)
DENIES the Commissioner’s motion for summary judgment
(Dkt. No. 11);
(quoting Craig, 76 F.3d at 595) (emphasis added). The underlying
impairment must still be reasonably expected to cause the alleged
symptoms. Id.
24
REYNOLDS V. BERRYHILL
1:16CV29
MEMORANDUM OPINION AND ORDER REJECTING REPORT AND
RECOMMENDATION [DKT. NO. 14], 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
4)
REVERSES the Commissioner’s decision under sentence four
of 42 U.S.C. § 405(g) and § 1383(c)(3); and
5)
REMANDS
this
case
to
the
Commissioner
for further
proceedings.
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: March 24, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
25
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