Kennedy v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:18-CV-411-RJ

BOBBIE SUE KENNEDY,

Plaintiff/Claimant,

ORDER

ANDREW SAUL, /

‘Commissioner of Social Security,

Defendant.

_ This matter is before the court on the parties’ cross-motions for judgment on the pleadings

[DE-24, -26] pursuant to Fed. R. Civ. P. 12(c). Claimant Bobbie Sue Kennedy (“Claimant”) filed

this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of

her application for a period of disability and Disability Insurance Benefits (“DIB”). The time for

filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having

carefully reviewed the administrative record and the motions and memoranda submitted by the

parties, Claimant’s Motion for Judgment on the Pleadings is allowed, Defendant’s Motion for

Judgment on the Pleadings is denied, and the case is remanded to the Commissioner, pursuant to

sentence four of § 405(g), for further proceedings.

I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on December

12, 2013, alleging disability beginning August 25, 2008. (R. 15, 283-84). Her claims were

approved initially with an established onset date of April 14, 2014. (R. 15, 126-49). Claimant □

appealed the decision based on the onset date. (R. 15, 190-93). Upon reconsideration, she was

determined to be not disabled and denied all benefits. (R. 15, 150-77). A hearing before the

Administrative Law Judge (“ALJ”) was held on July 31, 2017, at which Claimant, represented by

counsel; a witness; and a vocational expert (“VE”) appeared and testified. (R. 15, 51-125). On

October 24, 2017, the ALJ issued a decision denying Claimant’s request for benefits. (R. 12-50).

On June 19, 2018, the Appeals Council denied Claimant’s request for review. (R. 1-6). Claimant.

then filed a complaint in this court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under

the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether

substantial evidence supports the Commissioner’s factual findings and whether the decision was

reached through the application of the correct legal standards. See Coffinan v. Bowen, 829 F.2d

514, 517 (4th Cir. 1987). “The findings of the @omrmiesionss ... as to any fact, if supported by

substantial evidence, shall be conclusive ... .” 42 U.S.C. § 405(g). Substantial evidence is

“evidence which a reasoning mind would accept as sufficient to support a particular conclusion.”

Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large

or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more

than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In

reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting

evidence, make credibility determinations, or substitute [its] judgment, for that of the

[Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76

F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.FR.

§ 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court’s review is

limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her

findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d

438, 439-40 (4th Cir. 1997).

Ill. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set

forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim: □

The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently

working; and (2) must have a “severe” impairment that (3) meets or exceeds [in

severity] the “listings” of specified impairments, or is otherwise incapacitating to

the extent that the claimant does not possess the residual functional capacity to (4)

perform . .. past work or (5) any other work.

Albright v. Comm’r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). applicant’s claim fails

at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65

F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the

four steps of the inquiry rests on the claimant. Jd. At the fifth step, the burden shifts to the

AL] to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with

the “special technique” described in 20 C.F.R. § 404.1520a(b){c). This regulatory scheme

identifies four broad functional areas in which the ALJ rates the degree of functional limitation

resulting from a claimant’s mental impairment(s): understanding, remembering, or applying

information; interacting with others; concentrating, persisting, or maintaining pace; and adapting

- or managing oneself. Jd. § 404.1520a(c)(3). The ALJ is required to incorporate into his written

decision pertinent findings and conclusions based on the “special technique.” Id.

§ 404.1520a(e)(3).

In this case, Claimant alleges the ALJ erred in weighing the medical opinions and

formulating the RFC. Pl.’s Mem. [DE-25] at 7-19. .

IV. ALJ’S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant “not

disabled” as defined in the Act. At step one, the ALJ found Claimant had engaged in substantial

gainful employment from August 2008 to April 2009, but there had been a continuous twelve-

month period during which she did not engage in substantial gainful activity. (R. 18). Next, the

ALJ determined Claimant had the following severe impairments: residual effects of left knee

surgeries, bursitis, degenerative disc disease, lumbar radiculopathy, lumbar facet arthropathy,

migraines, headaches, fibromyalgia, chronic pain syndrome, depressive disorder, bipolar disorder,

anxiety disorder, panic disorder, personality disorder, and posttraumatic stress disorder (“PTSD”).

Id. The ALJ also found Claimant had nonsevere impairments of asthma, carpal tunnel syndrome,

costochondritis, esophageal reflux, hemorrhoids, osteopenia, vitamin D deficiency, scoliosis,

sinusitis, rhinitis, herpes zoster, fibrocystic breast disease, and obsessive compulsive disorder. (R.

19-21). However, at step three, the ALJ concluded these impairments were not severe enough,

either individually or in combination, to meet or medically equal one of the listed impairments in

20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 21-24). Applying the technique prescribed by the

regulations, the ALJ found that Claimant’s mental impairments have resulted in moderate

_ limitations in understanding, remembering, or applying information; interacting with others;

concentrating, persisting, or maintaining pace; and adapting or managing herself. Id.

Prior to proceeding to step four, the ALJ assessed Claimant’s RFC, finding Claimant had

ability to perform light work! requiring the following limitations: occasionally climb ramps

! Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg

controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do

substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work,

and stairs; never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and .

crawl; frequently reach, reach overhead, handle objects, and finger bilaterally; no exposure to very

loud noise; occasional exposure to loud noise; occasional exposure to pulmonary irritants such as

dust, odors, fumes, and gases and to poorly ventilated areas; occasional exposure to unprotected

heights, hazardous machinery, or hazardous moving mechanical tasks; simple, routine, and

repetitive tasks but not at a production. rate pace; simple work-related decisions; occasional

interaction with the public, coworkers, and supervisors; and being off task no more than ten percent

of an eight-hour workday in addition to normal work breaks. (R. 24-40). In making this

assessment, the ALJ found Claimant’s statements about the intensity, persistence, and limiting

effects of her symptoms not entirely consistent with the medical and other evidence. (R. 27).

At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements

of her past relevant work as a cashier checker, telephone operator, or benefits clerk. (R. 40-41).

Nonetheless, at step five, upon considering Claimant’s age, education, work experience, and RFC,

the ALJ determined Claimant is capable of adjusting to the demands of other employment

opportunities that exist in significant numbers in the national economy. (R. 41-42).

V. DISCUSSION

A. The ALJ erred in weighing the opinion evidence.

Claimant contends the ALJ erred in weighing several medical opinions. Pl.’s Mem. [DE-

25] at 7-19. When assessing a claimant’s RFC, the ALJ must consider the opinion evidence. 20

CER. § 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion

received. Id. § 404.1527(c).? In general, the ALI should give more weight to the opinion of an

unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of

time. 20 CER. §§ 404.1567(b).

2 The rules for evaluating opinion evidence for claims ue after March 27, 2017 are found in 20 C.F.R. § 404.1520c,

examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1).

Additionally, more weight is generally given to opinions of treating sources, who usually are most

able to provide “a detailed, longitudinal picture” of a claimant’s alleged disability, than non-

treating sources such as consultative examiners. Id. § 404.1527(c)(2). When the opinion of a

treating source regarding the nature and severity of a claimant’s impairments is “well-supported

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence” it is given controlling weight. Jd However, “[i]f a physician’s

opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence,

it should be accorded significantly less weight.” Craig, 76 F.3d at 590.

If the ALJ determines that a treating physician’s opinion should not be considered

controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking

into account the following non-exclusive list: (1) whether the physician has examined the applicant,

(2) the treatment relationship between the physician and the applicant, (3) the supportability of the

physician’s opinion, (4) the consistency of the opinion with the record, and (5) whether the

physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R.

§ 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See

Wireman y. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). “In

most cases, the ALJ’s failure to consider a physician’s opinion (particularly a treating physician)

or to discuss the weight given to that opinion will require remand.” Love-Moore v. Colvin, No.

7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). However,

“fajn ALJ’s determination as to the weight to be assigned to a medical opinion generally will not

be disturbed absent fame indication that the ALJ has dredged up ‘specious inconsistencies,’ or has

but 20 C.ER. § 404.1527 still applies in this case. ;

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) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir.

1992)).

1. Dr. Mukesh Kamdar’s 2009 opinions

In May 2009, Dr. Kamdar examined Claimant and opined, “At this point I do not believe

-she can function in any useful capacity in her current job.” (R. 1428). In August 2009, he wrote,

“She is still not capable of returning to work due to her significant depressed affect and mood as

well as the fact that she has extremely hard time concentrating. She also now has very poor

frustration tolerance.” (R. 1431). The ALJ gave those opinions partial weight because Dr. Kamdar

“only addressed her functioning at her current job, not any work.” (R. 38). The court can trace

the ALJ’s reasoning; Dr. Kamdar spoke to Claimant’s ability to return to the specific job she held

in 2009, and he did not opine on her ability to perform any work, so it was logical for the ALJ to

give ore opinions partial weight in his disability determination.

7 2. Dr. Kamdar’s 2013 and 2014 opinions }

In November 2013, Dr. Kamdar completed a check-box medical source statement. (R.

670-76). He indicated that Claimant was mildly limited in the ability to remember locations and

work-like procedures; the ability to understand, remember, and carry out short and □□□□□□

instructions; the ability to ask simple questions or request assistance; the ability to maintain

socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and the

ability to be aware of normal hazards and take appropriate precautions. Jd. Dr. Kamdar indicated

. that Claimant is moderately limited in the ability to understand, remember, and carry out detailed

instructions; the ability to maintain attention and concentration for extended periods; the ability

to perform activities within a schedule, maintain regular attendance, and be punctual; the ability

7 .

to sustain an ordinary routine without special supervision; the ability to work in coordination with

or proximity to others without being unduly distracted by them; the ability to make simple work-

related decisions; the ability to interact appropriately with the general public; the ability to accept

instructions and respond appropriately to criticism from supervisors; the ability to get along with

poorer or peers without unduly distracting them or exhibiting behavioral extremes; the ability

to respond appropriately to changes in the work setting; the ability to travel in unfamiliar places

or use public transportation; and the ability to set realistic goals or to make plans independently of

others. Jd. Dr. Kamdar indicated that Claimant was markedly limited in the ability to complete a

normal workday and workweek without interruptions from psychologically based symptoms and

_to perform at a consistent pace without an unreasonable number and length of rest periods. Jd. Dr.

Kamdar noted that Claimant has a substantial loss of ability to respond appropriately to supervision,

co-workers, and usual work situations and to deal with changes in a routine work ee (R. 672).

He opined that the date of onset of the limitations was March 25, 2008. (R. 673). He wrote that

_ Claimant was diagnosed with unipolar depression, bipolar disorder, and severe anxiety disorder,

and she also suffers from chronic pain syndrome. Jd.

In April 2014, Dr. Kamdar wrote a letter in which he opined that Claimant met a Listing.

(R. 674). He summarized her treatment since 2008 and concluded, “Her prognosis is □□ guarded

-andin my opinion, due to her disabling symptoms of Bipolar Disorder, she is not capable of gainful

employment.” (R. 675-76).

The ALJ did not differentiate between Dr. Kamdar’s 2013 opinion and his 2014 opinion;

rather, the ALJ discussed them together. (R. 38-39). The ALJ gave three reasons for affording the

opinions partial weight. Jd. First, the ALJ stated, “The ultimate issue of determining disability is

a finding reserved for the SSA Commissioner.” (R. 39). With respect to the 2014 opinion, that

reason was adequate. Dr. Kamdar stated in April 2014 that Claimant met a Listing and that she

was not capable of gainful employment, and those issues are reserved to the Commissioner. See

S.S.R. 96-5p, 1996 WL 374183, at *5 (July 2, 1996) (“The judgment regarding the extent to which

an individual is able to perform exertional ranges of work goes beyond medical judgment

regarding what an individual can still do and is a finding that may be dispositive of the issue of

disability. .. . [T]he overall RFC assessment is an administrative finding on an issue reserved to

the Commissioner.”). □

However, in the 2013 opinion, it does not appear that Dr. Kamdar opined on an issue

reserved to the Commissioner, such as Claimant’s ability to perform an exertional range of work

or her overall RFC assessment. See id. Dr. Kamdar’s 2013 opinion does not contain a statement __

about whether Claimant is capable of gainful employment. (R. 670-73). It is unclear which part

of Dr. Kamdar’s 2013 opinion consists of a finding reserved for the Commissioner. There is no

accurate and logical bridge from the opinion to the ALJ’s conclusion that Dr. Kamdar opined on

an issue reserved to the Commissioner; accordingly, the ALJ’s first stated reason for discounting

the 2013 opinion is inadequate.

The ALJ’s second reason for discounting Dr. Kamdar’s opinions is that they are

“inconsistent with the fact that the claimant was able to work for over a year after March 2008,”

and the ALJ cited Claimant’s hearing testimony. (R. 39). In 2013, Dr. Kamdar opined that

- Claimant’s limitations existed at the assessed severity since March 25, 2008, and she had, among

other limitations, a marked limitation in the ability to complete a normal workday and workweek

without interruptions from psychologically based symptoms. (R. 671). At the hearing, Claimant

testified that she worked through April 21, 2009. (R. 68-69). When the ALJ asked about her

alleged onset date of August 25, 2008, Claimant responded, “That was when Dr. Kamdar felt, I

guess in his professional opinion, that I met the criteria for disability but I still, you know, I still

attempted to work and I consistently had problems with my depression and anxiety and eventually

escalated to the point that I could no longer work.” (R. 70). Claimant testified that she had short

term disability, and then she received long term disability, which ended in 2010. Id.

The ALJ concluded that Dr.. Kamdar’s opinions were inconsistent with Claimant’s

testimony that she could work after March 2008; however, Claimant actually testified that □□□

attempted to work, consistently had problems, and obtained short term and then long term disability.

Claimant’s testimony does not appear to be inconsistent with Dr. Kamdar’s opinion. The ALJ

failed to build an accurate and logical bridge from the opinion and Claimant’s testimony to the

ALJ’s conclusion that they are inconsistent. Accordingly, the ALJ’s second reason for discounting

Dr. Kamdar’s opinions is inadequate.

The ALJ’s third stated reason for discounting the opinions was that they were “not

completely consistent with the mental status examinations at the time and his own treatment notes.”

(R. 39). However, the ALJ does not explain how the opinions are inconsistent with Dr. Kamdar’s

examinations and notes. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding error

when the ALJ made a conclusory statement that “the claimant’s treatment history did not support

the consultative examiner’s findings” and failed to explain further). In August 2013, three months

before Dr. Kamdar wrote the 2013 medical source statement, he evaluated Claimant, and his

objective findings indicated that she had a very needy attitude, soft and at times circumstantial and

over productive speech, depressed and anxious mood, sad affect, passive suicidal ideations, and

impaired short term memory. (R. 820). In the subjective findings, Dr. Kamdar indicated that

Claimant “is extremely depressed,” and “[t]here are days when she does not want to get [out] of

the bed and does not take shower flo]r days.” Id. She reported to Dr. Kamdar that “she has no

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energy or drive to do anything,” she has panic attacks, and she has significant anticipatory anxiety.

Id. Dr. Kamdar’s assessment was that Claimant had depressed bipolar disorder and generalized

anxiety disorder. Id. In September 2013, two months before Dr. Kamdar issued his opinion, he

noted that Claimant had improved after switching medications, but she reported that her

fibromyalgia was worse, such that she “can hardly get out of bed.” (R. 822). She had a pleasant

_. and calm attitude, slow psychomotor activity, apprehensive mood, and sad affect. Jd Dr.

Kamdar’s assessment was that Claimant had mood disorder NOS variously diagnosed as unipolar

depression to bipolar II disorder, and she presented with chronic depression and anxiety. (R. 823).

It is unclear how Dr. Kamdar’s treatment notes were inconsistent with his 2013 opinion.

Dr. Kamdar indicated that Claimant was mildly limited in six activities, moderately limited in

thirteen activities, and markedly limited in one activity. (R. 670-73). He summarized Claimant’s

diagnoses and concluded that she is more than likely suffering from bipolar disorder. (R. 673).

His opinion appears to be consistent with his 2013 examinations of Claimant, including her

subjective reports, his objective findings, and his diagnoses. Moreover, the 2014 opinion

summarizes Claimant’s treatment history and states her diagnoses. It is likewise unclear how the

2014 opinion is inconsistent with Dr. Kamdar’s examination notes. The court cannot trace the

ALJ’s reasoning, so the ALJ’s third stated reason is inadequate with respect to both opinions. See

Weiss v. Berryhill, No. 5:17-CV-556-FL, 2019 WL 1244700, at *4 (E.D.N.C. Mar. 18, 2019)

(because the ALJ did not explain how a treating provider’s opinion was inconsistent with the

evidence, “the court is unable to engage in meaningful jedicral review of the ALJ’s decision not to

afford [the] opinion controlling weight.”).

In summary, the ALJ offered three reasons for discounting Dr. Kamdar’s 2013 and 2014

opinions: Dr. Kamdar opined on an issue reserved to the Commissioner, his opinions were

11

inconsistent with Claimant’s testimony regarding her ability to work after March 2008, and his

opinions were inconsistent with his examination notes. (R. 39). None of the stated reasons was

adequate to discount the 2013 opinion, and only the first stated reason was logical with respect to _

the 2014 opinion. Remand is appropriate for the ALJ to re-weigh the opinions and explain his

reasoning in greater detail. See Weiss, 2019 WL 1244700, at *4; Gregory v. Berryhill, No. 5 □□□□

CV-00284-FL, 2017 WL 4171969, at *6 n.6 (E.D.N.C. Sept. 20, 2017). In particular, the fact that

the ALJ discounted the opinions of Claimants treating providers but gave greater weight to non-

examining sources requires further discussion. See 20 C.F.R. § 404.1 527(c)(2); Woods v. Berryhill,

888 F.3d 686, 695 (4th Cir. 2018); Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (finding

error where “the ALJ’s rejection of Lewis’ treating physician sources is perfunctory”).

3. Dr. Kamdar’s 2015 and 2017 opinions

In June 2015, Dr. Kamdar wrote a letter explaining that Claimant’s “bipolar disorder has

relapsed, characterized by severe depressive episodes, suicidal thoughts, anxiety, panic attacks and

decline in personal hygiene and overall self care. She is on the verge of being hospitalized at a

psychiatric facility.” (R. 870). Dr. Kamdar also wrote, “She is unable to carry out the normal

activities of daily living due to her underlying condition and is certainly not capable of any form

of gainful employment due to the severity of her mood disorder.” Jd. In July 2017, Dr. Kamdar

wrote a second letter stating that Claimant was hospitalized in August 2015 “for a serious suicide

attempt.” (R. 1471). He wrote: “She continues to manifest debilitating symptoms of depression,

has severe anxiety and is not in any way capable of gainful employment. I believe, unfortunately,

for this young lady, she has reached maximum improvement in her psychiatric condition and is

considered permanently disabled from a clinical standpoint.” Jd. Also in July 2017, Dr. Kamdar

re-signed his 2013 opinion and added at the bottom of the page, “No significant change . . . in fact

12 □

she now has additional psychological stressors.” (R. 1475).

The ALJ stated that he discounted the 2015 and 2017 opinions because “the ultimate issue

of determining disability is a finding reserved for the SSA Commissioner” and “these letters were

completed well after the claimant’s date last insured.” (R. 39). Like the 2014 opinion, and unlike

the 2013 opinion, the 2015 and 2017 opinions do contain conclusions about whether Claimant is

capable of gainful employment. (R. 870, 1471). That is an issue reserved to the Commissioner.

See S.S.R. 96-5p, 1996 WL 374183, at *5 (July 2, 1996). The ALJ thereby gave one adequate

reason for discounting the opinions.

The ALJ also stated that the letters were completed well after Claimant’s date last insured.

She was last insured on December 31, 2014. (R. 18). The 2015 letter was written on June 2, 2015,

so it was completed approximately five months after Claimant’s date last insured. (R. 870). A

five-month difference likely does not render the opinion irrelevant, particularly because Dr.

Kamdar summarized Claimant’s treatment since 2008 in the 2015 letter. See e.g., Cunningham v.

Berryhill, No. 5:17-CV-301-FL, 2019 WL 6731380, at * 4 (E.D.N.C. Nov. 19, 2018) (holding that

the ALJ erred in failing to consider a medical opinion even though the opinion was issued six

months prior to the alleged onset date) (citations omitted), adopted by, 2018 WL 6729784

(E.D.N.C. Dec. 21, 2018). On remand, further explanation of the weight afforded to the 2015 and

2017 opinions is required. :

4. Dr. E.J. Burgess -

In May 2014, Tara Luellen, M.A. LPA evaluated Claimant, and Dr. Burgess signed her

report. (R. 677-82). Ms. Luellen and Dr. Burgess concluded:

Overall, Ms. Kennedy was able to understand, retain, and follow instructions and

sustain her attention to perform simple tasks. However, she did so slowly, and this

was believed to be due to her mental health problems. Because of her diagnoses,

13

she had some difficulty relating to the examiner, and she may have some difficulty

relating to others in a work environment. Based on her current presentation, it does

not appear that she would be capable of tolerating the stress and pressure associated

with day-to-day work activities.

682). The ALJ gave the opinion partial weight because it “was based on a single examination

of the claimant and is vague in part. While his opinion is mostly supported by his examination, it

is not completely supported by the longitudinal medical evidence of record.” (R. 39).

First, the ALJ feeouniet the opinion because it was based on a single examination. Jd.

Generally, more weight is given to opinions of treating sources, who usually are most able to

provide “a detailed, longitudinal picture” of a claimant’s alleged disability, than non-treating

sources such as consultative examiners. 20 C.F.R. § 404.1527(c)(2). Because Ms. Luellen and Dr.

Burgess were consultative examiners who saw Claimant once and not treating providers, it was

appropriate for the ALJ to discount their opinion.

Second, the ALJ discounted the opinion because it was vague in part, but the ALJ did not

specify which part of the opinion is vague. (R. 39). The opinion ponies of six single-spaced

typed pages of prose. It is not a check-box form. It describes the examiner’s general observations;

Claimant’s present illness; her personal, family, and social history; her daily activities and

functioning; her mental health history; her medical, legal, and military history; her mental status

exam; her cognition; the examiner’s diagnostic impression; and the examiner’s conclusions. (R.

677-82). It is not obvious which part of the opinion is vague, and because the ALJ did not explain

his conclusion, it is impossible for the court to trace the ALJ’s reasoning. Accordingly, the ALJ’s

second stated reason for discounting the opinion is inadequate.

Third, the ALJ discounted the opinion because it was not supported by the longitudinal

medical evidence of record. (R. 39). Again, the ALJ does not go into further detail, and it is not

14

obvious to the court that the opinion is inconsistent with Claimant’s other medical evidence. The

ALJ’s third stated reason is therefore inadequate.

Nonetheless, the ALJ offered one sufficient reason to discount the opinion—Ms. Luellen

and Dr. Burgess were consultative examiners, not treating providers. On remand, the ALJ should

re-weigh the opinion and explain in more detail how the opinion is vague and how it is not

supported by the record.

5. Dr. Sandy Kimmel

In May 2014, Dr. Kimmel evaluated Claimant. (R. 684-86). She concluded that

Claimant’s chronic lower back pain “limits her from standing more than 10 minutes, walking more

than 20 minutes, lifting over 10 pounds, [and] sitting about an hour with heat.” (R. 686). The ALJ

gave the opinion partial weight because the “limitations are too restrictive given [Dr. Kimmel’s]

own examination and the medical evidence of record. They also appear to be based mostly on the

claimant’s self-reported limitations, not on objective medical findings.” (R. 40).

Dr. Kimmel’s own examination showed that Claimant’s “[m]otor strength is 5/5 in bilateral

upper and lower extremities, normal tone.” (R. 686). Claimant had intact coordination and a

normal gait; she was “able to walk on heels and toes,” but “[t]andem was mildly impaired.” Id.

Claimant “had normal lumbar range of motion, but complained of more pain with forward bending.”

Id. She had “elevated right PSIS forward bending,” “a significant right lumbar spasm,” “mild

curvature of the lumbar spine,” “spinous tenderness,” and tender points in multiple areas. Jd. Dr.

Kimmel noted that Claimant “requires no assistance to ambulate.” Jd.

The ALJ’s reason for giving the opinion partial weight is that the limitations are too

restrictive given Dr. Kimmel’s examination. (R. 40). Dr. Kimmel noted that Claimant had □□□

motor strength in her upper and lower extremities and normal tone, but she concluded that

. 15

Claimant cannot lift more than ten pounds. (R. 686). Additionally, Dr. Kimmel noted that

Claimant had a normal gait, could walk on heels and toes, and required no assistance to ambulate,

but Dr. Kimmel limited her from standing more than ten minutes or walking more than twenty

minutes, (R. 686). The court can trace the ALJ’s reasoning with respect to his stated reason for

discounting Dr. Kimmel’s opinion. Accordingly, the ALJ did not err in weighing the opinion.

6. The state agency medical opinions

Fourth, Claimant contends that the state agency medical opinions could not constitute

substantial evidence to support the ALJ’s decision because they were not well-supported by the

record. PI.’s Mem. [DE-25] at 17-19. Generally, more weight is given to treating providers than

non-examining or consultative medical sources. 20 C.F.R. § 404.1527(c). Here, the ALJ gave

substantial weight to the opinions of Dr. Sharon Skoll and Dr. Hari Kuncha because they were

consistent with the record. (R. 36-37).

Claimant contends that Dr. Skoll’s opinion is not consistent with the record because Dr.

Skoll barely mentioned a manic episode in May 2014 and attributed Claimant’s more depressed

state in August 2014 to her failure to take medications. Pl.’s Mem. [DE-25] at 17-18. However,

Dr. Skoll did mention and consider the 2014 manic episode, therefore her opinion is not

inconsistent with the record in that regard. (R. 165). Additionally, Dr. Skoll does not attribute

Claimant’s more depressed state to a failure to take medications; Dr. Skoll wrote, “An exam dated

08/12/14 indicates the [claimant] stopped taking her Depakote on her own and was feeling more

fences Id. Dr. Kamdar’s notes from that August 12, 2014 appointment state, “She has

stopped taking Depakote on her own. Reports feeling more depressed and her chronic pain has

also been worse.” (R. 833). Dr. Skoll therefore accurately summarized Dr. Kamdar’s notes, and

Dr. Skoll does not opine that Claimant’s failure to take Depakote caused her to feel more depressed.

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Dr. Skoll’s summation of Dr. Kamdar’s notes is accurate, and her opinion is therefore not

inconsistent with the record.

Claimant contends that Dr. Kuncha’s opinion was not consistent with the record because.

Dr. Kuncha noted that Claimant was improving, but in fact, Claimant’s improvements as noted by

‘the Cary Pain Center were only temporary. Pl.’s Mem. [DE-25] at 18. Dr. Kuncha stated, “The

most recent exam with [Cary Pain] shows the [claimant] reporting lumbar medial branch block

had helped her best and would like to continue.” (R. 170). Dr. Kuncha’s opinion was written in

June 2015, and Claimant’s latest appointment at Cary Pain Center in the record appears to be

January 9, 2015. (R. 848). At that appointment, Claimant did report that “lumbar medial branch

block had helped her best and would like to continue the treatment. No new complaints.” Jd. Dr.

Kuncha’s summary of the Cary Pain Center record is accurate, and his opinion is not inconsistent

with the record. Claimant also references a December 26, 2014 clinic note from Cary Pain Center

where Claimant reported that she still had significant low back pain and that injections only

provided relief for two to three weeks, but that appointment was not “the most recent exam” that

Dr. Kuncha referenced. (R. 850). Dr. Kuncha accurately summarized the January 9, 2015 clinic

note, therefore his opinion is not inconsistent with the record, and the ALJ did not err in weighing

the opinion.

B. . The ALJ’s summary of his rationale for the RFC

Claimant raises three issues with the ALJ’s summary of his reasoning found on page forty

of the record: (1) the ALJ noted Claimant’s lack of inpatient psychiatric care, (2) the ALJ noted

that Claimant did not always take her medication as prescribed and failed to follow up with

physical therapy, and (3) the ALJ considered the types of Claimant’s daily activities but not the

extent to which she performs them. Pl.’s Mem. [DE-25] at 15-19.

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First, Claimant contends that the ALJ “criticizes” her lack of inpatient psychiatric care, and

there is “no legal requirement that psychiatric hospitalization is a prerequisite for disabling mental

health symptoms.” Jd. at 15. The ALJ mentions the lack of inpatient psychiatric care in the first

sentence of his summary paragraph; he wrote, “In sum, the above residual functional capacity

assessment is supported by the longitudinal medical record, to include the lack of inpatient

psychiatric care prior to the date last insured, the relative control of claimant’s symptoms with

treatment and medication, the claimant’s statements, the medical opinions, and the claimant’s

presentation on examinations.” (R. 40). In context, the ALJ did not criticize Claimant’s lack of

‘inpatient psychiatric care or state that it was a prerequisite for a finding of disability; rather, the

AL] offered it as one reason among many for his RFC assessment. The ALJ’s formulation of the

RFC may appropriately be based in part on a conservative course of treatment, including a lack of

panier treatment. See Dunn v. Colvin, 607 F. App’x 264, 275 (4th Cir. 2015) (“If all that the

claimant needs is conservative treatment, it is reasonable for an ALJ to find that the alleged

disability is not as bad as the claimant says that it is.””); Richardson v. Colvin, No. 4:14-CV-125-

FL, 2015 WL 5725546, at *6 (E.D.N.C. Aug. 11, 2015) (concluding that conservative treatment

lends little support to claims of debilitating symptoms), adopted by 2015 WL 5737613 (E.D.N.C.

Sept. 30, 2015). Accordingly, the ALJ appropriately relied on Claimant’s lack of inpatient

psychiatric treatment as a factor in explaining the rationale underlying his RFC formulation.

Second, Claimant contends that the ALJ criticized alleged treatment noncompliance and

“cherry-picked” evidence with little explanation. Pl.’s Mem. [DE-25] at 16. The ALJ noted that

Claimant did not always take her medication as prescribed, and he cited a 2012 record. (R. 40).

Claimant was instructed to take one tablet of Paxil and Wellbutrin daily, but she took those

medications twice per day. (R. 508). An ALJ may appropriately discount a claimant’s testimony

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“Gf the medical reports or records show that the individual is not following the treatment as

prescribed and there are no good reasons for this failure.” S.S.R. 96-7p, 1996 WL 374186, at *7

(July 2, 1996). Here, however, Claimant did not take less medication than was prescribed; rather,

she took two doses daily instead of one. The fact that Claimant took more antidepressant

medication than was prescribed, and not less, does not undercut the severity of her alleged

symptoms. If anything, it may imply that her symptoms were more severe and could not be

managed with prescribed medication. Accordingly, the ALJ’s observation that Claimant was

noncompliant with her medications does not lend support to his conclusion that her testimony was

not fully consistent with the medical and other evidence. If the ALJ wishes to rely on Claimant’s

noncompliance in his formulation of the RFC, the issue should receive additional discussion on

remand.

Third, Claimant contends that the ALJ considered the types of activities Claimant

performed but not the extent to which she performed them. Pl.’s Mem. [DE-25] at 16-17. If that

were the case, it would be error. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (finding

error when the ALJ stated that the claimant could “maintain her personal hygiene, cook, [and]

perform light household chores” but did not consider the claimant’s testimony that she has trouble

dressing and bathing, she can only prepare simple meals, it takes her longer than normal to do

laundry and shop, and she sometimes “spends the entire day on the couch”); Brown v. Comm’r Soc,

Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017). However, it appears that the ALI did consider the

extent to which Claimant performs her activities. The ALJ’s discussion on page forty of the record

is merely a summary of the ALJ’s rationale, and further details are found throughout the decision.

The ALJ noted that Claimant was able to care for her young daughter, and earlier in the decision,

the ALJ specified the extent to which Claimant did so: she cared for her daughter from 3:30 p.m.

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to midnight while her husband was working, and during that time, she fed her daughter, read to

her, and changed her diapers. (R. 26, 40). The ALJ also noted that Claimant could carry her

daughter when she weighed fourteen pounds but had difficulty lifting her when she was forty

pounds. (R. 40). The ALJ stated that Claimant could take walks with her dogs, and the ALJ

specified the extent of that activity—Claimant reported taking those walks daily. Jd. Likewise,

_ the ALJ noted that Claimant exercised on an elliptical, and the ALJ specified that Claimant did so

for fifteen to twenty minutes a day. Jd. The ALJ noted that Claimant can drive, and she went

outside a few times a week, would leave the house more days than she did not, and would not go

‘out twelve days a month. (R. 26, 40). The ALJ wrote that Claimant once reported she was taking

care of her grandmother, and that appears to be the only activity for which the ALJ noted the type

but not the extent to which Claimant performed it. (R. 40). In summary, it is not likely the ALJ

committed harmful error by noting the type but not the extent to which Claimant performs certain

activities.

In summary, Claimant raised three issues with the ALJ’s REC assessment: the ALJ noted

Claimant’s lack of inpatient psychiatric care, the ALJ found that Claimant did not always take her

medication as prescribed, and the ALJ considered the types of Claimant’s daily activities but not

the extent to which she performs them. Pl.’s Mem. [DE-25] at 15-19. First, the ALJ did not err

in noting Claimant’s lack of inpatient care because a conservative course of treatment can inform

whether a claimant’s impairments are as limiting as she alleges. Second, the ALJ ought to give

greater attention to Claimant’s noncompliance with medication on remand; Claimant took more

medication than was prescribed, not less, so it is not clear that her noncompliance undermines her

credibility. Third, it appears that the ALJ largely did consider the extent to which Claimant

performs her daily activities. Nonetheless, the case is remanded because the ALJ erred in weighing

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the medical opinions.

VI. CONCLUSION

For the reasons stated above, Claimant’s Motion for Judgment on the Pleadings [DE-24] □

is ALLOWED, Defendant’s Motion for Judgment on the Pleadings [DE-26] is DENIED, and this

matter is REMANDED to the Commissioner, pursuant to sentence four/six of § 405(g), for further

proceedings consistent with this Order.

So ordered, the 8th day of July, 2019.

United States Magistrate Judge

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