# Phelps v. Saul

> District Court, E.D. North Carolina · March 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10251051

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** March 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION

No. 7:19-CV-37-FL

JEREMY D. PHELPS, )
)
Plaintiff, )
)
v. ) 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 23, 29). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United
States Magistrate Judge Robert T. Numbers, II, entered memorandum and recommendation
(“M&R”), wherein it is recommended that the court deny plaintiff’s motion, grant defendant’s
motion, and affirm defendant’s decision. Plaintiff timely filed objections to the M&R, and the
issues raised are ripe for ruling. For the reasons that follow, the court rejects the M&R, grants
plaintiff’s motion, denies defendant’s motion, and remands this case to defendant for further
proceedings.
BACKGROUND
On June 8, 2015, plaintiff protectively filed a Title II application a period of disability and
disability insurance benefits, as well as a Title XVI application for supplemental security income.
Plaintiff initially alleged disability beginning December 31, 2009, but later amended his alleged
disability onset date to August 11, 2015. Plaintiffs’ applications were denied both initially and
upon reconsideration. Later, plaintiff filed a request for a hearing before an administrative law
judge (“ALJ”), who, after a September 26, 2017, hearing, denied plaintiff’s claims by order entered
December 26, 2017. Following the ALJ’s denial of his applications, plaintiff timely filed a request
for review with the Appeals Council. On January 11, 2019, the Appeals Council denied plaintiff’s
request for review, leaving the ALJ’s decision as defendant’s final decision. Plaintiff then filed
complaint in this court seeking judicial review.

COURT’S DISCUSSION
A. Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review defendant’s final decision
denying benefits. The court must uphold the factual findings of the ALJ “if they are supported by
substantial evidence and were reached through application of the correct legal standard.” Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence is . . . such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quotations omitted). The standard is met by “more than a mere scintilla of
evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.

1966). In reviewing for substantial evidence, the court is not to “re-weigh conflicting evidence,
make credibility determinations, or substitute [its] judgment” for defendant’s. Craig, 76 F.3d at
589.
“A necessary predicate to engaging in substantial evidence review is a record of the basis
for the ALJ’s ruling,” including “a discussion of which evidence the ALJ found credible and why,
and specific application of the pertinent legal requirements to the record evidence.” Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013). An ALJ’s decision must “include a narrative discussion
describing how the evidence supports each conclusion,” Monroe v. Colvin, 826 F.3d 176, 190 (4th

2
Cir. 2016) (4th Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)), and an
ALJ “must build an accurate and logical bridge from the evidence to his conclusion.” Id. at 189
(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
To assist it in its review of defendant’s denial of benefits, the court may “designate a
magistrate judge to conduct hearings. . .and to submit. . .proposed findings of fact and

recommendations for the disposition [of the motions for judgment on the pleadings].” See 28
U.S.C. § 636(b)(1)(B). The parties may object to the magistrate judge’s findings and
recommendations, and the court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” Id. §
636(b)(1). The court does not perform a de novo review where a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a
specific and timely filed objection, the court reviews only for “clear error,” and need not give any
explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,

315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of
the record, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The ALJ’s determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant’s medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform [his or her]
past relevant work; and (5) the claimant can perform other specified types of work.

3
Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful activity since August 11, 2015.

(Transcript of the Record (“Tr.”) 19). At step two, the ALJ found that plaintiff had the following
severe impairments: post-traumatic stress disorder (“PTSD”), cannabis use disorder, alcohol use
disorder. (Tr. 19). At step three, the ALJ further determined that these impairments were not
severe enough, either individually or in combination, to meet or medically equal one of the listings
in the regulations. (Tr. 20).
Before proceeding to step four, the ALJ determined plaintiff had the residual functional
capacity (“RFC”) to perform a full range of work at all exertional levels, but plaintiff “is limited
to only brief incidental contact with the general public. Additionally, the claimant is limited to no
more than occasional decision making or changes in the work setting.” (Tr. 21).

At step four, the ALJ concluded plaintiff was unable to perform any past relevant work.
(Tr. 28). At step five, the ALJ determined jobs exist in the national economy that plaintiff can
perform. (Tr. 28). Thus, the ALJ concluded plaintiff was not disabled under the terms of the
Social Security Act. (Tr. 29).
B. Analysis
Plaintiff objects that the ALJ erred by giving limited weight to the medical opinions of Dr.
Richard Carlson, plaintiff’s treating psychiatrist, and Dr. Robert Garfield, plaintiff’s prior treating
physician.
“Medical opinions are statements from acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”
20 C.F.R. § 404.1527(a)(1). “Treating source means your own 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. § 404.1527(a)(2). The ALJ must weigh
“the medical opinions in your case record together with the rest of the relevant evidence we
receive.” 20 C.F.R. § 404.1527(b). An ALJ must “evaluate every medical opinion we receive,”
regardless of its source. 20 C.F.R. § 404.1527(c). An opinion as to an issue reserved to the
Commissioner, such as a statement that plaintiff is “disabled” or “unable to work,” are not medical
opinions given any special significance. 20 C.F.R. § 404.1527(d)(1), (3).
Where, as here, plaintiff’s claims were filed before March 27, 2017, the court applies the
“treating physicians rule” to determine how much weight to assign to medical opinions given by
sources that provided plaintiff with treatment or had an ongoing treatment relationship with

plaintiff. Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 255–56 (4th Cir. 2017) (citing 20
C.F.R. § 1527). “[A] treating physician’s opinion on the nature and severity of the claimed
impairment is entitled to controlling weight if it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
the record.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). “By negative implication, if a
physician’s opinion is not supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less weight.” Craig, 76 F.3d at 590.
“Under such circumstances, the ALJ holds the discretion to give less weight to the testimony of a
treating physician in the face of persuasive contrary evidence.” Mastro, 270 F.3d at 178.
Where an opinion is not given controlling weight, the ALJ is responsible for assessing the
weight of a medical opinion based on several factors. See 20 C.F.R. § 404.1527(c). Those factors
include: 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; 5) whether the physician is a specialist; and 6) other

factors brought to defendant’s attention, such as the amount of understanding of defendant’s
disability programs and their evidentiary requirements, and the physician’s familiarity with other
information in the record. See id. § 404.1527(c); Johnson, 434 F.3d at 654.
“An ALJ must include a narrative discussion describing how the evidence supports his
explanation of the varying degrees of weight he gave to differing opinions concerning [the
claimant’s] conditions and limitations.” Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018)
(internal quotation marks and citation omitted). An ALJ has an obligation to avoid improperly
“playing doctor” by mischaracterizing plaintiff’s treatment as “conservative.” Lewis v. Berryhill,
858 F.3d 858, 868–69 (4th Cir. 2017).

On January 24, 2017, and June 13, 2017, Carlson listed plaintiff’s medications and opined
that “due to his medical/psychiatric condition of PTSD, he is unable to work or hold a job.” (Tr.
395, 398). The ALJ did not err in refusing to give these two opinions any weight, as plaintiff’s
ability to hold a job is an issue reserved for the Commissioner. See 20 C.F.R. § 404.1527(d)(1),
(3).
On July 11, 2017, Carlson gave a third opinion, providing a function by function
assessment. (Tr. 400). Carlson opined that plaintiff had extreme limitations in social functioning,
where he was almost never able to leave the house alone, then only for brief periods. (Id.). Carlson
opined that plaintiff’s concentration, pace, and persistence was extremely limited due to panic and
nightmares. (Id.). Carlson opined that plaintiff was extremely limited in functioning on his own,
and can not pay bills, even though he could manage a bank account. (Id.). Finally, Carlson opined
that plaintiff was extremely limited as to periods of decompensation, often decompensating in
social situations. (Id.). Carlson opined that “medications help but still has severe limitations.”
(Id.). That same day, Carlson prescribed plaintiff a service dog. (Tr. 401).

The ALJ discounted Carlson’s July 11, 2017, opinion for two reasons. First, the ALJ
reasoned that Carlson noted “that medications helped the claimant with his severe limitations.”
(Tr. 25). This is a mischaracterization of Carlson’s opinion. Carlson stated that “medications help
but still has severe limitations,” not that “medications help with severe limitations.” (Tr. 25, 400).
Thus, the ALJ’s interpretation of Carlson’s opinion is not supported by substantial evidence.
Second, the ALJ relies upon “conflicting treatment notes from Coastal Horizons” to
conclude that “claimant improved significantly with treatment.” (Tr. 25). The ALJ specifically
cites to portions of plaintiff’s treatment notes from February 28, 2017, and March 17, 2017,
indicating that Buspar, one of plaintiff’s anxiety medications, helps “greatly.” (Tr. 25, 430–32).

Substantial evidence does not support the ALJ’s position that Carlson’s opinion was
inconsistent with his treatment notes. On January 20, 2017, plaintiff reported to Carlson that he
was having trouble sleeping and had nightmares. (Tr. 436). Plaintiff also reported staying away
from people and some memory loss. (Id.). On February 13, 2017, plaintiff had severe panic attacks
requiring an EMS be called. (Tr. 434). As noted by the ALJ, plaintiff reported a better mood and
improvement in anxiety and panic from use of Buspar on February 28, 2017, and March 17, 2017.
(Tr. 430–32). However, on April 18, 2017, plaintiff reported feeling withdrawn on many days, his
sleep was a bit of a problem, and plaintiff suffered stressors including recently learning his mother
had cancer.1 (Tr. 428). On July 11, 2017, plaintiff reported decreased sleep and increased anxiety.
(Tr. 424).
The court does not see any conflict between Carlson’s July 11, 2017, opinion and his
treatment notes. Carlson accounted for the fact that medications helped plaintiff in his medical
opinion regarding plaintiff’s limitations. (Tr. 400). Treatment notes subsequent to plaintiff’s

February 28, 2017, and March 17, 2017, support Carlson’s July 11, 2017, opinion that plaintiff’s
symptoms were still severe. (Tr. 424, 428). Plaintiff required additional treatment, including
increased medication and a therapy dog, even after noting improvement in his symptoms. (Tr.
401, 426, 429, 431).
Furthermore, Carlson’s opinion is consistent with Garfield, another treating physician. On
June 8, 2016, Garfield previously opined that plaintiff’s ability to work “would be limited by his
problems concentrating, his problems getting along with people and following simple instructions,
his problems maintaining acceptable standards of hygiene, and his social phobia.” (Tr. 410). Like
Carlson, the ALJ discounted Garfield’s opinion on the basis that plaintiff’s symptoms are “well

controlled with prescription medications.” (Tr. 24–25 (citing Tr. 410–16)). The portions of the
record cited by the ALJ identify the medications prescribed by Garfield and include one statement
to Garfield that plaintiff “gives very good reviews” to tramadol for pain relief and Ambien for
insomnia. (Tr. 410–16). The ALJ’s assertion that Garfield opined plaintiff’s symptoms were
“well-controlled” by the medication prescribed is not supported the treatment notes cited and thus
amounts to the ALJ improperly playing doctor. Lewis, 858 F.3d at 868–69. Accordingly, remand
is required for defendant to properly weigh Carlson’s and Garfield’s medical opinions.

1 Plaintiff also reported to Carlson that his father had leukemia, though it is unclear when he learned of this.
(Tr. 428).
CONCLUSION
Based on the foregoing, the court REJECTS the M&R. Plaintiff's motion for judgment on
the pleadings is GRANTED (DE 23) and defendant’s motion for the same (DE 29) is DENIED.
This case is REMANDED to defendant pursuant to sentence four of § 405(g). The clerk of court
is DIRECTED to close this case.
SO ORDERED this 24th day of March, 2020.

( ne W. FLANAGWA
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10251051. Public record. Not legal advice.