MASON v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SHAVONYA D. MASON, )

Plaintiff,

Vv. 1:21CV762

KILOLO KIJAKAZI,

Acting Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plainuff Shavonya D. Mason (“Plaintiff”) brought this action pursuant to Section

1631(c)(3) of the Social Security Act (the “Act’’), as amended (42 U.S.C. § 1383(c)(3)), to obtain

judicial review of a final decision of the Commissioner of Social Security denying her claim

for Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have filed

cross-motions for judgment, and the administrative record has been certified to the Court for

review.

PROCEDURAL HISTORY

Plaintiff protectively filed her application for SSI on August 25, 2014, alleging a

disability onset date of July 1, 2006. (Tr. at 16, 371-88)! She later amended her alleged onset

date to August 26, 2014. (Tr. at 16, 393, 2016.)? Plaintiffs application was denied initially (Tr.

Transcript citations tefer to the Sealed Administrative Record [Doc. #8].

2 Plaintiff also filed an application for child’s insurance benefits under Title II of the Act. However, Plaintiff

voluntarily withdrew her request for a heating as to this claim in light of her amendment of the alleged onset

at 96-126) and upon reconsideration (Tr. at 127-200, 247-70). Thereafter, she requested an

administrative hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 273-78.)

Plaintiff first appeared at a hearing on August 28, 2017, but she requested a continuance at

that time. Several months later, on December 6, 2017, Plaintiff, along with her attorney and

an impartial vocational expert, attended the postponed hearing. (Tr. at 16.) The ALJ

ultimately concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 27),

and, on February 28, 2019, the Appeals Council denied Plaintiffs request for review, thereby

making the AL]’s ruling the Commissionet’s final decision for purposes of judicial review (Tr.

at 1-7).

Thereafter, on September 28, 2020, this Court issued a decision remanding the case for

further proceedings. (T'r. at 2121-35.) Accordingly, on April 8, 2021, Plaintiff, along with her

attorney and non-attorney representatives, attended a second administrative hearing at which

Plaintiff and an impartial vocational expert testified. (Tr. at 2016.) Following this hearing, the

ALJ again concluded that Plaintiff was not disabled within the meaning of the Act. (Tr. at

2027.) Because Plaintiff is appealing from an unfavorable decision after a remand Order from

this Court, she was not required to seek review from the Appeals Council. 20 C.F.R.

§ 404.984 (a), (d); 20 C.F-R. § 416.1484(a), (d). Instead, she is entitled to seek judicial review

of the ALJ’s decision in this Court, which she did with the filing of her Complaint [Doc. #1]

on October 1, 2021.

date from July 1, 2006 to August 26, 2014. (See Tr. at 16-17.) Plaintiff acknowledged that, as of the amended

date, she did not have the insured status necessary for a Title II claim. (Tr. at 16.)

IL. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s dental of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL] if they are supported by substantial evidence and were reached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) Gnternal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”’ Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“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

[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to tesult in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A))?

“The Commissioner uses a ftve-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C-F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquiry. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. ‘The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C-F-R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSD, governing these two programs ate,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 1.1.

wotking, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “[i]f a claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.4 Step four then requires the AL] to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the clatmant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its

+ “REC is a measurement of the most a claimant can do despite [the clatmant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect clasmant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing basis .. . [which] means 8

hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,’ as well as “nonexertional limitations

(mental, sensory, or skin imapairments).” Hall, 658 F.2d at 265. “REC is to be determined by the ALJ only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”

Hines, 453 F.3d at 562-63.

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

II. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since her amended alleged onset date of August 26, 2014. The AL] therefore

concluded that Plainuff met her burden at step one of the sequential evaluation process. (Tr.

at 2019.) At step two, the ALJ further determined that Plaintiff suffered from the following

severe impairments:

anxiety, depression, asthma, carpal tunnel syndrome, and obesity].

(Tr. at 2019.) The ALJ found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (Tr. at 2020-21.) Therefore, the ALJ assessed

Plaintiffs RFC and determined that she could perform medium work with further limitations.

Specifically, the ALJ found that

[Plaintiff] can frequently handle and finger bilaterally. She can have frequent

exposure to pulmonary irritant[s] such as dust, fumes, odors, and gases. She

can understand, remember, and carry out unskilled work of a routine nature.

She can maintain attention and concentration for at least two-hour periods of

time sufficient to carry out unskilled work. In the course of a normal workday

[and normal workweek, she can adapt to routine workplace changes at a non-

production pace (meaning non-assembly line or conveyor-belt type jobs). She

can have occasional interaction with the general public. She can have frequent

interaction with coworkers and supervisors, meaning work not requiring

teamwork for task completion. There can be no driving required for the jobs.

(Tr. at 2022.)

The AL] determined at step four of the analysis that Plaintiff had no past

televant work. (Tr. at 2026.) However, the ALJ also concluded at step five that, given

PlaintifPs age, education, work experience, and RFC, along with the testimony of the

VE tegarding those factors, Plaintiff could perform jobs available in substantial

numbers in the national economy and therefore was not disabled. (Tr. at 2026-27.)

Plaintiff now raises two related challenges to the ALJ’s RFC assessment. First, Plaintiff

argues that the AL] failed to properly consider opinion evidence from Plaintiffs treating

psychologist. Second, Plaintiff contends that the social functioning findings in the mental

RFC assessment are not supported by substantial evidence. After careful consideration of the

entire record, the Court finds that Plaintiffs first contention merits remand, and the Court

therefore need not reach Plaintiffs second contention.

A. Dr. Rominger’s opinion

Plaintiff first challenges the ALJ’s evaluation of statements, dated November 27, 2017,

and March 25, 2021, from Plaintiffs treating psychologist, Dr. Robert Rominger. The ALJ

summarized the contents of Dr. Rominget’s statement as follows:

He opined that [Plaintiffs] difficulties getting along with people due to distrust

and suspiciousness, and her unstable perceptions of others and magnified

perception of emotional stakes due to her histrionic and borderline traits, would

interfere with her ability to interact with people on a professional basis. She is

likely to be limited in coping with other people, both one-on-one and in group

settings. Most days, her anxiety is debilitating. He believes that in a work place

she would flee when she became overwhelmed by anxiety.

(T'r. at 2025.) Ultimately, the AL] gave “little weight” to Dr. Rominger’s findings. In doing

so, the ALJ relied on the following rationale:

First, [Dr. Rominget’s] treatment notes show that he has not consistently treated

[Plaintiff] and there was a petiod of from 2019 to January 2021 where she was

not receiving treatment. Second, [Dr. Rominger] was “assisted” in preparing

this by the law students and the pre-hearing brief is very close to identical to his

opinion making it uncleat how much of this is his opinion. [Third,] [Plaintiff]

has not appeared to want to help herself as she refuses treatment and has a

reason for neatly every medication as to why not to take it. In addition, [fourth]

it is not supported by evidence in the record, including normal memory,

judgement, insight, concentration, and thought content.

(Tr. at 2025-26.)

For claims like Plaintiffs that are filed before March 24, 2017, ALJs evaluate the

medical opinion evidence in accordance with 20 C.F.R. § 404.1527(c). Brown v. Comm’r Soc.

Sec., 873 F.3d 251, 255 (4th Cir. 2017). “Medical opinions” are “statements from acceptable

medical sources that reflect yudgments 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 testrictions.” Id. (citing 20 CFR.

§ 404.1527(a)(1)). While the regulations mandate that the AL] evaluate each medical opinion

presented to her, generally “more weight is given ‘to the medical opinion of a source who has

examined you than to the medical opinion of a medical source who has not examined you.”

Brown, 873 F.3d at 255 (quoting 20 C.F.R. § 404.1527(c)(1)). And, under what is commonly

referred to as the “treating physician rule,” the AL] generally accords the greatest weight—

controlling weight—to the well-supported opinion of a treating source as to the natute and

severity of a claimant’s impairment, based on the ability of treating sources to

provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)

[which] may bring a unique perspective to the medical evidence that cannot be

obtained from the objective medical findings alone or from reports of individual

examinations, such as consultative examinations or brief hospitalizations.

20 C.F.R. § 404.1527(c)(2). However, if a treating source’s opinion is not “well-supported by

medically acceptable clinical and laboratory diagnostic techniques” or is “inconsistent with

other substantial evidence in [the] case record,” it is not entitled to controlling weight. 20

C.F.R. § 404.1527(c)(2); see also Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *4;

Brown, 873 F.3d at 256; Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178.5 Instead, the opinion

must be evaluated and weighed using all of the factors provided in 20 C.F.R. § 404.1527(c)(2)-

(c)(6), including:

(1) the length of the treatment relationship,

(2) the frequency of examination,

(3) the nature and extent of the treatment relationship,

(4) the supportability of the opinion,

(5) the consistency of the opinion with the record,

(6) whether the source is a specialist, and

(7) any other factors that may support or contradict the opinion.

The Fourth Circuit has recently confirmed the application of the treating physician rule

in Arakas v. Commissioner, 983 F.3d 83 (4th Cir. 2020), and Dowling v. Commissioner, 986

F.3d 377 (4th Cir. 2021). In Arakas, the Fourth Circuit “emphasized that the treating physician

tule is a robust one: ‘[T]he opinion of a claimant’s treating physician [must] be given great

weight and may be disregarded only if there is persuasive contradictory evidence.” Arakas,

983 F.3d at 107 (quoting Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). Thus, “the

opinion must be given controlling weight wv/ess it is based on medically unacceptable clinical or

laboratory diagnostic techniques or is contradicted by the other substantial evidence in the

record.” Id. (emphasis in original). Similarly, in Dowling, the Fourth Circuit emphasized that

even if a “medical opinion was not entitled to controlling weight, it does not follow that the

AL] had free reign to attach whatever weight to that opinion that he deemed fit. The AL] was

° For claims filed after Match 27, 2017, the regulations have been amended and several of the prior Social

Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social

Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to

any medical opinion(s) or prior administrative medical finding(s), inchiding those from your medical soutces.”

20 C.F.R. § 404.1520c. However, the claim in the present case was filed before March 27, 2017, and the Court

has therefore analyzed Plaintiffs claims pursuant to the treating physician rule set out above.

required to consider each of the six 20 C.F.R. § 404.1527(c) factors before casting [the treating

physician] opinion aside.” Dowling, 986 F.3d at 385. “While an AL] is not required to set

forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating

physician, it must nonetheless be apparent from the AL]’s decision that he meaningfully

considered each of the factors before deciding how much weight to give the opinion.” Id.

Here, Dr. Rominget, who 1s a clinical psychologist and Assistant Professor of Medicine

at Wake Forest University Baptist Medical Center, provided an opinion as follows

Shavonya Mason is my patient. I am treating her for anxiety, a cluster B

personality disorder with histrionic and borderline traits, episodic mood

disorder, attention deficit hyperactivity disorder (ADHD), post-traumatic stress

disorder (PTSD), and pain disorder associated with physical and psychological

factors. I first met with Ms. Mason in 2009 and then again in June 2013, both

times for depression. She has been seeing me fairly regularly since June 2014.

Treatments include a combination of cognitive-behavioral therapy (CBT),

insight therapy, and supportive psychotherapy.

Since I have been treating her, Ms. Mason has suffered from social anxiety,

fatigue, irritability, restlessness, sleep disturbance, difficulty concentrating, and

physical pain, among other symptoms. .. . [A]ll of her reported symptoms are

consistent with at least one of her diagnoses.

She is regularly nervous, jittery, and paranoid. She suffers from severe anxiety

in social situations, which makes interacting with others extremely difficult,

particularly people she does not know well. Ms. Mason’s anxiety also

contributes to her fatigue, sleep dysregulation, and difficulty concentrating.

Ms. Mason’s extreme anxiety in social situations often prevents her from

accessing resources that she needs. For example, in 2017, Ms. Mason's case

manager at the Department of Social Services asked her to come into the office

so she could renew her food stamps. Ms. Mason reported to me that she would

rather give up her food stamps than deal with the crowd at Social Services.

During the same visit, she added that she is eligible for energy assistance, but

has not claimed it for the same treason. More recently, during a therapy session

in 2019, Ms. Mason expressed her desire to be admitted to inpatient care. I

agreed that she would benefit from inpatient care based on the severity of her

10

symptoms at the time. Her options were already limited by her lack of health

insurance and she refused to consider any options that required her to

participate in groups. She was extremely hesitant to consider any treatment

center where she did not have a preexisting connection. Ultimately, Ms. Mason

did not receive inpatient care.

Due to the combined effect of her personality disorder and anxiety, Ms. Mason

is highly reactive and has great difficulty regulating her emotions. This reactivity,

combined with her suspiciousness of others, frequently impairs her ability to

function in the world. Because of her suspiciousness, paranoia, and related fears

that she might hurt someone, Ms. Mason typically avoids social interaction and

leaving her house, even to seek cate or do errands. She tries to go to the grocery

store when there are few people there and counts the cars in the parking lot

before deciding whether to enter.

In addition to her anxiety, Ms. Mason’s histrionic and borderline traits interfere

with her ability to control her emotional responses to social situations and in

turn her perception of others. Already enduring extreme anxiety in social

situations, Ms. Mason feels perceived slights very keenly, and these magnified

emotions mean that her views of others can rapidly shift from idealization to

devaluation. As a result, she is prone to emotional reactivity and outbursts.

Ms. Mason’s persistent fears that she may hurt someone have been

extraordinarily debilitating, as they contribute to her desire to self-isolate to

protect others and herself. While Ms. Mason’s anxiety and paranoia contribute

to these fears, her inability to control her emotions has resulted in at least some

vetbal and physical altercations.

Having worked with Ms. Mason for many years, I can confidently state that she

has extreme difficulty interacting with others. Ms. Mason’s severe social anxiety

means that attempting to engage socially is extremely difficult, while her

histrionic and borderline traits magnify the emotional and interpersonal stakes

of any encounter. Her inability to contain these magnified emotions often places

her in a situation where her best available coping mechanism 1s to flee to avoid

an otherwise inevitable confrontation. Forcing Ms. Mason to interact with

others she does not know would not only be highly distressing to her but would

likely also be disruptive to those around het...

In my opinion, Ms. Mason’s difficulties getting along with people due to distrust

and suspiciousness, and her unstable perceptions of others and magnified

perception of emotional stakes due to her histrionic and borderline traits, would

interfere with her ability to interact with people on a professional basis. She is

likely to be limited in coping with other people, both one-on-one and in group

11

settings. Most days, her anxiety is debilitating. I believe that in a work place she

would flee when she became overwhelmed by anxiety.

Although Ms. Mason has experienced periods of stability, they do not last. She

is easily thrown off and loses control of her emotions. Ms. Mason has been

managing her conditions with medication and regular psychotherapy for most

of her adult life. Still, small incidents can easily trigger a downward spiral that

derails her sincere efforts to improve her situation. My time working with Ms.

Mason and my more than 20 years of experience as a psychologist lead me to

believe that her prognosis does not include a level of improvement that would

vastly increase her functioning.

(Tr. at 2713-16.)

As Plaintiff correctly notes, the AL} mischaracterized much, if not all, of the evidence

used to discount Dr. Rominger’s opinion. First, the AL] found that Dr. Rominger “has not

consistently treated [Plaintiff] and there was a period of from 2019 to January 2021 where she

was not teceiving treatment.” (Ir. at 2026.) However, the record clearly reflects that Dr.

Rominger saw Plaintiff for an in-person visit on May 24, 2019, and teletherapy visits on April

16, 2020, and December 17, 2020, in light of COVID-19 precautions. (Tr. at 2608, 2655,

2693, 2699.) ‘Thus, the AL]’s statement that “there was a period of from 2019 to January 2021

where she was not receiving treatment” 1s factually inaccurate on a key factor for weighing

opinion evidence. Indeed, with regard to the length of the treatment relationship, the

frequency of examination, and the nature and extent of the treatment relationship, the

evidence reflects that Dr. Rominger first saw Plaintiff in 2009, and has been treating her

regularly since at least May 2016. For the five-year period from May 2016 through Match

2021 when the heating was conducted, Plaintiff saw Dr. Rominger at least twice each year,

and over 20 times total, for sessions of approximately one hour each. (T'r. at 1690-91, 1694-

96, 1704-05, 2420, 2446, 1722, 1728, 1759, 1829, 1994, 1998, 2466, 2477, 2534, 2581, 2609,

12

2655, 2693, 2699, 2703, 2708.) Thus, Dr. Rominger has spent over 20 hours with Plaintiff

ovet a five year period and has conducted several cognitive assessments and mental

evaluations.

In addition, for the petiod of time between May 2019 and January 2021, the record

reflects that in addition to the two teletherapy sessions in 2020, Dr. Rominger also noted that

during that time Plaintiff also came to several appointments but left the waiting room before

being seen. (Tr. at 2699.) This behavior is consistent both with Plaintiffs claims of anxiety

in groups of people and her reports of leaving waiting rooms and other places if there were

too many people. Notably, the medical record reflects multiple instances in which Plaintiff left

without being seen (e.g., T'r. at 2002), including a particularly notable occasion in 2014 where

she waited for a period of time and then became distressed, started crying on the phone to her

case manager, and made statements that raised concerns that she was potentially suicidal,

ultimately requiring Dr. Rominger to spend an extended period of time with her to try to calm

her down and prevent her from discontinuing treatment altogether. (Tr. at 1488.) ©

Moreover, the ALJ did not address or consider the extent to which Plainuffs failure to

keep her appointments was a result of the mental impairments themselves. See Pate—Fires v.

Asttue, 564 F.3d 935, 945 (8th Cir. 2009) (“Courts considering whether a good reason

suppotts a claimant’s failure to comply with prescribed treatment have recognized

psychological and emotional difficulties may deprive a claimant of the rationality to decide

6 The records thus support Plaintiffs testimony that she left waiting rooms if there wete too many people, and

that providers modified Plaintiffs waiting room routine to accommodate her needs. (I'r. at 2070.) Treatment

records similarly support Plaintiffs testimony that she declined to see new medical providers because she did

not do well adjusting to new people and environments. (See, eg:, Tr. at 2070.) Similarly, the records also

support Plaintiffs testimony that her anxiety and mental health impairments prevented her from participating

in group therapy. (T'. at 2067-68.)

13

whether to continue treatment or medication.” (internal quotations omitted)). The Fourth

Circuit has made clear that “the burden of producing evidence concerning unjustified

noncompliance lies with the Secretary, ... [and] the Secretary must develop a record

establishing by substantial evidence that the claimant’s impairment ‘is reasonably remediable

by the particular individual involved, given... her social or psychological situation,’ and that

this claimant lacks good cause for failing to follow a prescribed treatment program.” Preston

v. Heckler, 769 F.2d 988, 990-91 (4th Cir. 1985) (quoting ‘Tome v. Schweiker, 724 F.2d 711,

714 (8th Cir.1984) (internal citations omitted).

Thus, to the extent the ALJ rejected Dr. Rominger’s opinion because Dr. Rominger

had “not consistently treated her and there was a period of from 2019 to January 2021 where

she was not teceiving treatment,” the AL]’s statement is both factually inaccurate and also fails

to address the extent to which Plaintiffs failure to keep appointments or maintain even more

frequent treatment was itself a result of her mental impairments.

Second, the ALJ discounted Dr. Rominger’s opinion because “he was ‘assisted’ in

preparing” it by law students working with Plaintiffs attorney. (Tr. at 2026.) In fact, Dr.

Rominger’s statement expressly provides as follows:

I spoke with [Plaintiffs] representative from Duke Health Justice Clinic about

my opinions regarding [Plaintiffs] diagnoses, symptoms, functioning, and

prognosis. Based on my training and expertise, and the fact that I have been

treating [Plaintiff] regularly since 2015 and was famuliar with her prior to that, I

feel qualified to give such an opinion. Although [Plaintiff's] representative

prepared this statement after our discussion, I have reviewed it carefully

and made edits, and it accurately expresses my opinion and the

information I relayed to [Plaintiff's] representative.

(Tr. at 2010) (emphasis added). Dr. Rominger’s medical records likewise note multiple

meetings with Plaintiff's representatives regarding Plaintiffs impairments (Tr. at 2707, 2708,

. 14

2712.) Those records reflect that Dr. Rominger discussed with Plaintiffs representatives “how

[Plaintiffs] mental health symptoms would likely interfere with her ability to work,” and Dr.

Rominger suggested that he re-administer several tests, including depression screening, anxiety

screening, and cognitive assessment, which he did during Plaintiffs appointment on March 9,

2021, before providing his opinion. (Tr. at 2707, 2708-11.) He also met with Plaintiffs

representatives again to answer their additional questions. (Tr. at 2712.) As Plaintiff correctly

notes, the ALJ “provides no evidence that would show that the statement is not Dr.

Rominger’s genuine medical opinion.” (P1.’s Br. [Doc. #14] at 11), nor does she explain why

the “assistance” rendered in this case would, in and of itself, render Dr. Rominger’s opinion

less persuasive ot reliable.’

As the third reason for rejecting Dr. Rominget’s opinion, the ALJ asserts that Plaintiff

“has not appeared to want to help herself as she refuses treatment and has a reason for nearly

every medication as to why not to take it.” (I'r. at 2026.) To the extent the AL] is relying on

the same rationale as the first contention regarding gaps in the treatment record, the rationale

fails for the reasons set out above. See Pate—Fires, 564 F.3d at 945 (“[Flederal courts have

recognized a mentally ill person’s noncompliance with psychiatric medications can be, and

usually is, the result of [the] mental impairment [itself] and, therefore, neither willful nor

without a justifiable excuse.”),; Preston, 769 F.2d at 990-91. Earlier in her decision, the AL]

ALJ also notes that “the pre-hearing brief is very close to identical to [Dr. Rominger’s] opinion making it

unclear how much of this is his opinion.” (Tr. at 2026.) However, to the extent the AL] is referencing Dr.

Rominger’s 2017 opinion and the 2017 pre-hearing brief, Dr. Rominger’s opinion is dated November 27, 2017,

prior to the date of the pre-hearing brief. (Tr. at 2010-12, 549-54.) Similarly with regard to the 2021 opinion

and the 2021 pre-hearing brief, Dr. Rominger’s opinion is dated March 25, 2021, a week prior to the pre-hearing

brief. (Tr. at 2713-16; 2240-2252.) It is not surprising that the briefs would then rely heavily on Dr. Rominger’s

opinions to explain Plaintiff's impairments.

15

quoted a treatment note from Dr. Rominger relating that Plaintiff is “[g}]enerally resistant to

taking any medication other than clonazepam,” also known as Klonopin. (Ir. at 2023, 2693.)

The ALJ further noted Plaintiffs subjective reports of the problems she experienced when

trying other medications:

[Plaintiff] said the amitriptyline she took a couple of years ago caused headaches,

that Seroquel and trazodone wete too sedating, that she did not like Prozac, that

the combination of Zoloft and trazodone caused het to see demons, and that

Buspar caused headaches and made her want to hurt herself.

(Tr. at 2023) (citing Tr. at 2693). In the briefing, Plaintiff notes that “none of [Plaintiffs]

treating physicians have ever expressed concern that she is exaggerating or being dishonest

about the seriousness of her adverse reactions to many of the antidepressants she has tried,”

and, Plaintiff's providers, including Dr. Rominger, consistently describe her as compliant with

her medications despite her negative experiences with certain drugs. (Pl.’s Br. at 12.) The

record also reflects ongoing efforts by her providers, including a consultation by Dr. Rominger

with other mental health professionals (Tr. at 2612), to try to find a medication option that

Plaintiff can tolerate and afford and that will not cause her to terminate treatment, as has been

her pattern in connection with her mental health condition. (Tr. at 915, 991, 1151, 1690, 1693,

1705, 1723, 1829, 1994, 2421, 2446.) Given this record, the ALJ has failed to provide any

basis to use medication or treatment non-compliance as a basis to discredit Dr. Rominger’s

opinion.

Finally, the ALJ contends that Dr. Rominger’s opinion “is not supported by the

evidence in the record, including normal memory, judgement, insight, concentration, and

thought content.” (Tr. at 2026) (citing Tr. at 1096, 1737, 1802, 2390, 2495). However, the

treatment notes cited by the AL] relate to Plaintiffs treatment for physical, rather than mental,

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complaints. Thus, they do not represent instances in which Plaintiff's mental health conditions

were at issue ot were specifically tested. As such, they have limited relevance to the issue of

Plaintiff's overall mental health impairments.’ See also ‘Testamark v. Berryhill, 736 F. App’x

395 (4th Cir. 2018). Notably, Dr. Rominger’s treatment notes reflect that from 2016 to 2021,

on examination Plaintiff was alert and cooperative, with full facial expressions and good

grooming, and occasionally with good insight and normal perception and reasoning, but also

with examinations reflecting mildly loosened associations, limited insight and judgment (Tr. at

1690-91); mild cognitive impairment with impaired /limited insight and fair to poor judgment

based on mental status examination and cognitive assessment (Tr. at 1694-96); mild agitation,

flight of ideas, pressured speech and restless with anxious affect (Tr. at 1704-05); limited

speech (Tr. at 2420); agitation and pressured speech (Tr. at 2446); flight of ideas, pressured

speech, paranoid thought content, and limited insight (Tr. at 1722-23); perceptual distortions

and delusional thought content (Tr. at 1728-29); flight of ideas, pressured speech and limited

insight with questionable judgment (Tr. at 1759-60); mild distress and flattened affect (Ir. at

1829-30); suspiciousness, flight of ideas, and pressured speech with paranoid ideation (I'r. at

1994-95); ageressive behavior, pressured speech and suspiciousness, with paranoid ideation

(Tr. at 1998-99); ageressive behavior, flight of ideas and scattered speech (Tr. at 2466-67);

emotionally distressed and restless with paranoid thought content (Ir. at 2477-78); irritability

8 The specific records cited by the AL] are a 2012 office visit for a migraine (Tr. at 1096 (10F/207)), a 2017

neurology visit for headaches, with the treatment note also reflecting that she had recently been in an altercation

and that on review of systems she was “nervous/anxious.” (Tr. at 1736-39 (20F/20)); a 2017 Emergency

Department visit for a headache (Tr. at 1799-1803 (21F /53); a 2016 neurology visit for headaches, with the

treatment note also reflecting that as a result of a recent fight with her family she had been hit in the head by

her brother, and that on review of systems she was “nervous/anxious” (Tr. at 2389-92 (26F/130)); and a 2017

visit to a podiatrist for right foot pain (Tr. at 2495 (28F/33)).

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and mild agitation (Tr. at 2534-35); irritability, learning difficulty, mood swings, agitation, flight

of ideas and pressured speech (Tr. at 2581-82); irritability, mood swings, phobia, possible

auditory hallucinations, and poor insight (Tr. at 2608-09); tearful affect, flight of ideas,

pressuted speech and rigid thought content (I'r. at 2693-94); flight of ideas, scattered thought

process with idiosyncratic reasoning, pressured speech and suspiciousness (Tr. at 2699-2700);

flight of ideas, pressured speech and scattered thought process with idiosyncratic and rigid

thought content (Tr. at 2703-04); and labile affect, mixed insight and judgment, and pressured

speech with flight of ideas (Tr. at 2708-09). Thus, it appears that Dr. Rominger’s opinion is

supported by evidence in the record.

In addition, Dr. Rominger’s notes also reflect diagnosis of episodic mood disorder,

which Dr. Rominger explained was “a mood disorder similar to bipolar disorder” (Tr. at 2714),

and Cluster B Personality Disorder with histrionic and borderline traits. The treatment

records repeatedly note paranoid ideation and raise concern that Plaintiff would harm others,

including evidence of assaults, threats, and urges to hurt others that she viewed with suspicion

or paranoia. For example, the records reflect involvement in an altercation with her brother

in 2014 (Tr. at 1001); involvement in a fight involving her mother and brother in January 2016

resulting in her being hit in the face or head (Tr. at 2384, 2389); her statement to Dr. Rominger

in August 2016 that she was trying to resist the urge to hurt others (Tr. at 2420); a verbal

argument with her neighbor in September 2016 resulting in her being shoved or punched (Tr.

at 2428); her statement to Dr. Rominger in October 2016 that she was still trying to resist the

° The AL] did not acknowledge ot address these impaitments and considered all of Plaintiffs mental health

impairments as part of Plaintiff's depression and anxiety.

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urge to hurt others, with the record also noting that she had walked out of a Daymark group

in frustration when she “evidently had difficulty comprehending the materials” and lost her

temper with her representatives in her Social Security case; a fight with her boyfriend in January

2017 resulting in her being choked (Tr. at 1730, 1759); a delusional pregnancy in March 2017,

culminating in her becoming “aggressive and hostile” in the Emergency Department and then

“stormling] out” of the hospital (Tr. at 1764-68); her acknowledgment to Dr. Rominger in

August 2017 of “homicidal feelings at times” and that “by avoiding people she has avoid[ed]

assault charges” (Tr. at 1994-95); her statement to Dr. Rominger in September 2017 admitting

to “frequently wanting to hurt people” but not acting on those impulses (Tr. at 1998); an

incident in September 2017 where she became verbally aggressive with a stranger who she

thought was looking at her, telling him she would knock his eyes out (Tr. at 1998-99); threats

toward the spouse of a deceased friend in October 2017, threatening that she would “tear his

skin off” (Tr. at 2466); threats toward her brother in December 2017 that “she has thought of

forty-two ways to kill him” if he did not change his behavior toward their mother (Tr. at

2477); her statement to Dr. Rominger in December 2018, that she was concerned “she might

lash out and hurt somebody” (Tr. at 2581); an attempt to work at the end of 2019 that lasted

fot three days and resulted in her blowing up at a coworker and then walking out because she

was afraid she would physically assault the coworker and was trying to not to get an assault

charge (T'r.at 2065); an incident in a store in April 2020, in which Plaintiff left the store to try

to avoid a confrontation because she didn’t want “to get locked up” (TI't. at 2655); and a

notation by Dr. Rominger in December 2020 that Plaintiff's mother had described her as

“setting very ageressive” (T'r. at 2693).

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Finally, the Court notes that one of the most important factors in evaluating opinion

evidence is consistency, which the AL] did not address. Importantly here, Dr. Romingetr’s

Opinion is consistent with the opinion of the consultative examiner, Psychiatrist Stephen

Sanders, who examined Plaintiff for several hours in 2015, and noted that Plaintiff was

cooperative, oriented, and did not exaggerate or minimize symptoms, but with an IQ in the

borderline range of intellectual functioning, poor impulse control, major depression, recurrent

panic disorder, agoraphobia, posttraumatic stress disorder, and learning disorder, and with the

following conclusion:

In my opinion, the claimant would have difficulty retaining and following

instructions. She would have difficulty performing simple repetitive tasks. . . .

She experiences difficulty being around people due to her anxiety, panic

disorder, and would have difficulty tolerating the stress and pressure associated

with day-to-day work activity due to ongoing problems with depression and

panic symptoms.

(Tr. at 1630). Dr. Sanders as the Consultative Examiner further concluded that Plaintiff would

not be capable of handling benefits in her own interest, and that her mother would need to

handle her benefits. (T'r.at at 1630.) Thus, the only mental health professionals who spent

time with Plaintiff, Dr. Sanders and Dr. Rominger, both agreed on the extenstveness of

Plaintiffs mental health impairments, but the ALJ gave them both little weight.

Overall, the Court is hard-pressed to agree that the ALJ provided proper, well-

suppotted reasons to negate the detailed opinion of Plaintiffs long-time mental health

provider. As set out above, the express purpose of the treating physician rule is to “provide a

detailed, longitudinal picture of [the clatmant’s] medical impairment(s) . . . that cannot be

obtained from the objective medical findings alone or from reports of individual

examinations.” 20 C.F.R. § 404.1527(c)(2). Because the AL] failed to apply this rule as

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interpreted by the Fourth Circuit in Arakas and Dowling, substantial evidence fails to support

the administrative decision, and remand is required.

The Court notes that the AL]’s treatment of the opinion evidence also relates to

Plaintiff's alternative argument, that the ALJ’s determination of the RFC regarding Plaintiffs

social functioning is not supported by substantial evidence because the AL] mischaracterized

the evidence or cherry-picked evidence in the record. In setting the RFC, the ALJ found

Plaintiff capable of “occasional interaction with the general public,” meaning that she could

interact with the general public for up to a third of an eight-hour workday, or over 2.5 hours

of daily interaction with the general public. The AL] also determined that Plaintiff could have

“frequent interaction with coworkers and supervisors,” meaning that she could interact with

coworkers and supervisors for up to two thirds of the workday, or over 5 hours of interaction

per day, but she could not perform work “requiring teamwork for task completion.” (I'r. at

2022.) This determination was directly affected by the evaluation of the opinion evidence

from Dr. Mortis and Dr. Sanders.!° As such, the Court tecommends remand for further

consideration of these issues.

The Court also notes that in the decision, the ALJ found that “Plaintiffs acknowledged daily activities,

including preparing meals, performing household chores, coloring, researching various topics on her phone,

and maintaining close interpersonal relationships with friends and family, ... demonstrated a greater social and

cognitive ability than alleged.” (Def.’s Br. [Doc. #16] at 18) (citing Tr. at 2022-23, 2055, 2058-62, 2655).

However, very few of these findings relate to social functioning in any meaningful way, and as for Plaintiff's

relationships with friends and family, Plaintiff testified that she sometimes experienced anxiety around those

close to her, cutting short visits even with close friends because their movements caused Plaintiff to become

aggressive and anxious, and the record notes fights and threats toward her brother, her former boyfriend, and

her neighbor, as noted above. The AL] further “noted that Plaintiffs ability to travel on public transportation

to New York and help care for her friend’s small child was inconsistent with her allegation that she experiences

debilitating, uncontrollable anxiety.” (Def.’s Br. at 18) (citing Tr. at 2022-23, 1690, 1995, 2055). In recounting

Plaintiff's ability to travel, the AL] acknowledged Plaintiff's testimony that, on her trips to New York, “she

takes the bus there and sits in a seat by herself with her headphones on.” (Tr. at 2022; see also Tr. at 2055,

2066-67.) Defendant argues that this qualification of Plaintiff's activities distinguishes her case from Arakas,

where the ALJ relied on Plaintiffs activities to discount the limiting effects of her impairments without

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IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be REVERSED, and that the matter be REMANDED to the Commissioner

under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand

the matter to the AL] for proceedings consistent with this Recommendation. To this extent,

Defendant’s Motion for Judgment on the Pleadings [Doc. #15] should be DENIED, and

Plaintiffs Motion for a Judgment on the Pleadings [Doc. #13] should be GRANTED.

This, the 13 day of March, 2023.

/s/ Joi Blizabeth Peake

United States Magistrate Judge

considering the extent of those activities. (Def.’s Br. at 18) (citing Arakas, 983 F.3d at 96); see also Woods v.

Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) and Lewis v. Berryhill, 858 F.3d 858, 868, n.3 (4th Cir. 2017).

However, additional evidence of Plaintiff's social activities shows that the activities relied upon by the ALJ were

limited well beyond the extent acknowledged in the AL]’s decision. In the case of Plaintiffs travels, for

example, Plaintiff testified that her aunt pays for two bus seats so that no one can sit next to her, that Plaintiff

refuses to interact with anyone else while riding, that Plaintiff has to wait for everyone else to get off the bus

before disembarking, and that Plaintiffs aunt picks her up directly from the bus stop so that she doesn’t have

to interact with other people. (Tr. at 2066-67.) With regard to caring for her friend’s child, Plaintiff reported

to Dr. Rominger in 2016 that she had cared for the three-year-old “for about six months but had to quit

watching him because” of an increase in het mental symptoms in 2015 and the record reflects that Plaintiff

previously lost custody of all four of her children by action of Child Protective Services. (Tr. at 1690, 915, 922.)

Plaintiff also testified that she wanted to eatn her GED, but attempted to attend a class and had to leave because

she could not stay in the room with more than four people. (Tr. at 2059, 2063-64.) Plaintiff related similar

problems regarding her ability to use a laundromat, noting that she would postpone doing her laundzry if there

were too many people there. (Tr. at 2060-61.) She further explained that, even when she did not have to talk

to other people, she felt a need to keep track of what others around her ate doing at all times. (Tr. at 2061.)

Plaintiff admitted that she might be able to work “in a backroom type situation with only a couple of other

people,” but doubted that positions of that type would be available in businesses open to the public. Gee Tr.

at 2071-72.) It appears that Plaintiffs attorney repeatedly tried to ask the vocational whether jobs of this type

occur in substantial numbers in the national economy, but the vocational expert failed to grasp the thrust of

this question or directly answer it. (See Tr. at 2080-88.)

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