“If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
How later courts described this case
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
- holding that ALJs may rely on opinions of non-examining physicians when such opinions find consistency with whole of record
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHANNON HUNTER, )
)
Plaintiff, )
)
v. ) 1:19CV912
)
ANDREW M. SAUL, )
Commissioner of Social )
Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Shannon Hunter, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security, denying Plaintiff’s claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.) Defendant has filed the certified administrative record
(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 14; see also Docket Entry 13
(Plaintiff’s Brief), Docket Entry 15 (Defendant’s Memorandum);
Docket Entry 16 (Plaintiff’s Reply). For the reasons that follow,
the Court should enter judgment for Defendant.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
August 31, 2015. (Tr. 236-37, 238-44.) Upon denial of those
applications initially (Tr. 74-103, 139-49) and on reconsideration
(Tr. 104-35, 155-72), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 173-74). Plaintiff, her
non-attorney representative, and a vocational expert (“VE”)
attended the hearing. (Tr. 37-73.) The ALJ subsequently ruled
that Plaintiff did not qualify as disabled under the Act. (Tr. 13-
31.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 230-32, 339-41), making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2021.
2. [Plaintiff] has not engaged in substantial gainful
activity since August 31, 2015, the alleged onset date.
. . .
3. [Plaintiff] has the following severe impairments:
hypertension, diabetes mellitus, migraine without status
migrainous, not intractable, insomnia, hyperlipidemia,
depressive disorder and anxiety disorder.
. . .
4. [Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5. . . . [Plaintiff] has the residual functional
capacity to perform light work . . . except that she can
frequently balance, stoop, kneel, crouch, or crawl. She
needs to avoid concentrated exposure to loud noise,
unprotected heights, moving mechanical parts and
unprotected direct sunlight. She is limited to simple,
routine tasks but not at a production rate pace, e.g.,
2
assembly line work. She is capable of sustaining
concentration and pace for two-hour segments during a
standard eight-hour workday. She is limited to simple
work related instructions and directions, she is limited
to occasional interaction with the public, and she is
limited to routine changes in an unskilled work setting.
. . .
6. [Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from August 31, 2015, through the
date of this decision.
(Tr. 18-31 (bold font and internal parenthetical citations
omitted).)
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.” Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
3
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,
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.” Hines, 453 F.3d at 561
(internal brackets and quotation marks 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. 1992) (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 [C]ourt should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].” 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
4
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, 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 result 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)).1 “To regularize the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.” Id. “These regulations establish a
1 The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
‘sequential evaluation process’ to determine whether a claimant is
disabled.” Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps: “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 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 [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2 A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, 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
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
2 “Through the fourth step, the burden of production and proof is on the
claimant. If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).” Id. at 179.3 Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant 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,
whereupon the ALJ 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 Commissioner cannot carry its “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 567.4
3 “RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’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 impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4 A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
B. Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ gave great weight to the opinions of the [state
a]gency psychological record reviewers who found that [Plaintiff]
would adjust better to a work setting that does not require much
interaction, but the ALJ did not include any limitations
interacting with coworkers and/or supervisors [in the RFC or
dispositive hypothetical question], or explain why he omitted them”
(Docket Entry 13 at 8 (bold font and single-spacing omitted);
accord Docket Entry 16 at 1); and
2) “[t]he ALJ rejected the opinions of [Plaintiff]’s treating
psychiatrist [Dr. Barbara A. Lowry], but [the ALJ’s] reasons for
doing so are not supported by substantial evidence” (Docket Entry
13 at 14 (bold font and single-spacing omitted); accord Docket
Entry 16 at 4).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (Docket Entry 15 at 10-19.)
1. Interaction with Supervisors and Coworkers
In Plaintiff’s first issue on review, she faults the ALJ for
affording “great weight to the opinions of the [state a]gency
psychological record reviewers who found that [Plaintiff] would
adjust better to a work setting that does not require much
interaction, but . . . not includ[ing] any limitations interacting
8
with coworkers and/or supervisors [in the RFC or dispositive
hypothetical question], or explain[ing] why he omitted them.”
(Docket Entry 13 at 8 (emphasis added) (bold font and single-
spacing omitted); accord Docket Entry 16 at 1.) In particular,
Plaintiff points out that “[t]he ALJ only limited [Plaintiff]’s
interaction with the public [in the RFC], but [that] the [state
a]gency [psychological] record reviewers made no such distinction
in their Functional Capacity Assessment or narrative discussion of
all mental capacities and limitations.” (Docket Entry 13 at 11
(emphasis added).) Plaintiff further contends that the ALJ’s
decision does not clarify why the ALJ “narrowed the record
reviewers’ social limitation finding” (id.) in violation of Thomas
v. Berryhill, 916 F.3d 307 (4th Cir. 2019) (id. at 12-13), and
notes that both Plaintiff “and her mother indicated that
[Plaintiff] had difficulty interacting with anyone other than her
mother, stepfather, and doctors” (id. at 11). According to
Plaintiff, “[t]he ALJ’s omission is significant because the ability
to respond appropriately to supervisors and coworkers is one of the
basic mental demands of competitive, remunerative, unskilled work,
and a substantial loss of the ability to meet th[o]se work related
activities would severely limit the potential occupational base,
which would, in turn, justify a finding of disabled.” (Id. at 13-
14.)
Here, the ALJ accorded “significant weight” to the opinions of
the state agency psychological consultants (Tr. 27), including
9
their opinion that Plaintiff would “adjust better ina setting that
d[id] not require much interaction” (Tr. 28 (emphasis added); see
also Tr. 86, 100, 115, 130). In the RFC, the ALJ limited Plaintiff
to “occasional interaction with the public” (Tr. 21 (emphasis
added)), but did not limit the degree of Plaintiff’s interaction
with supervisors or coworkers (see id.), and the ALJ’s decision
does not expressly explain why he omitted those restrictions (see
Tr. 18-29). However, for the reasons explained more fully below,
the ALJ did not err in that regard.
As an initial matter, the state agency psychological
consultants’ statement that Plaintiff would “adjust better in a
setting that d[id] not require much interaction” (Tr. 86, 100, 115,
130 (emphasis added)), by itself, does not equate to an opinion
that, without an interaction limitation, Plaintiff would qualify as
disabled or would not remain capable of holding competitive
employment. As such, crediting that statement did not obligate the
ALJ to include any particular limitation on Plaintiff’s ability to
interact with others in the RFC. However, because the consultants
found more generally at step two of the SEP that Plaintiff had
moderate limitation in her ability to function socially (see Tr.
81, 95, 110, 125), the Court should proceed to evaluate whether
substantial evidence supports the ALJ’s decision to omit
limitations on interaction with coworkers and supervisors from the
RFC.
10
Consideration of the state agency psychological consultants’
mental RFC findings regarding Plaintiff’s ability to function
socially permit the Court to meaningfully review the ALJ’s decision
to omit from the RFC restrictions relating to interaction with
coworkers and supervisors. In the mental RFC assessment, the state
agency psychological consultants found Plaintiff “[m]oderately
limited” in her “ability to interact appropriately with the general
public.” (Tr. 86, 100, 115, 130 (emphasis added).) In contrast,
the consultants rated Plaintiff as “[n]ot significantly limited” in
her abilities to “ask simple questions or request assistance,”
“accept instructions and respond appropriately to criticism from
supervisors,” “get along with coworkers or peers without
distracting them or exhibiting behavioral extremes,” and “maintain
socially appropriate behavior.” (Id. (emphasis added).) Thus, as
the Commissioner argues, “the ALJ’s RFC assessment that only
limited Plaintiff’s interaction with the public (and not her
interaction with coworkers and supervisors) was entirely consistent
with the state agency psychologi[cal consultants’ opinions].”
(Docket Entry 15 at 15.)
In Reply, Plaintiff faults the Commissioner for relying on
“assessments the [state a]gency consultants made in [s]ection I of
the mental RFC form” (Docket Entry 16 at 1), and argues that the
SSA’s Program Operations Manual System (“POMS”) makes clear that:
[t]he purpose of section I (“Summary Conclusion”) is
chiefly to have a worksheet to ensure that the
11
psychiatrist or psychologist has considered each of these
pertinent mental activities and the claimant’s degree of
limitation for sustaining these activities over a normal
workday and workweek on an ongoing, appropriate, and
independent basis. It is the narrative written by the
psychiatrist or psychologist in section III (“Functional
Capacity Assessment”) of the form that adjudicators are
to use as the assessment of RFC.
(Id. (italics and bold font supplied by Plaintiff) (citing POMS
§ DI 25020.010B.1).) Plaintiff further contends that the Court has
previously “found that the state agency psychological consultants’
explanations in the narrative portions of the mental RFC forms
suffice to explain their ultimate conclusions.” (Id. at 2-3
(citing Weinshenker v. Berryhill, No. 1:17CV4, 2017 WL 3841861, at
*14 (M.D.N.C. Sept. 1, 2017) (unpublished), recommendation adopted,
slip op. (M.D.N.C. Oct. 10, 2017) (Eagles, J.)).) For the reasons
discussed more fully below, that argument falls short.
In Weinshenker, the plaintiff had argued that “there [wa]s no
determination [by the ALJ] as to how [the plaintiff] would be able
to accept instructions, criticism, etc. from her supervisors . . .
despite both [s]tate agency psychological consultants, whose
opinions the ALJ gave great weight, opining that [the plaintiff
wa]s moderately limited in her ability to accept instructions and
respond appropriately to criticism from supervisors.” Weinshenker,
No. 1:17CV4, Docket Entry 9 at 13 (M.D.N.C. May 19, 2017) (internal
citation omitted); see also id. at 15-15 (contending that “POMS DI
25020.010(B)(2)(c) states that the mental ability to accept
instructions and respond appropriately to criticism from
12
supervisors is needed to do any job and POMS DI 25020.010(B)(3)(k)
says the ability to accept instructions and respond appropriately
to criticism from supervisors is a critical mental ability for
performing unskilled work[, b]ut again the ALJ does not discuss
[the plaintiff]’s capability in this required work function despite
the fact he gave great weight to the psychological consultants’
opinions who said she is moderately limited in this required work
ability” (internal citation omitted)).
The Court rejected the plaintiff’s argument, reasoning as
follows:
[T]he ALJ properly accounted in the RFC for [the
plaintiff]’s moderate limitation in the ability to accept
instructions and respond appropriately to criticism from
supervisors by limiting [the plaintiff] to only
“occasional contact” with such individuals. Moreover,
the ALJ gave “great weight” to the opinions of state
agency psychological consultants, who concluded, in the
narrative portion of the mental RFC form, that, despite
“[m]oderate[] limit[ation]” in “[t]he ability to accept
instructions and respond appropriately to criticism from
supervisors,” [the plaintiff] remained capable of
performing work “in settings with no demand for extensive
social interactions. . . . The state agency
psychological consultants’ explanations in the narrative
portions of the mental RFC forms suffice to explain their
ultimate conclusions.
Weinshenker, 2017 WL 3841861, at *14 (first emphasis in original,
subsequent emphasis added) (internal citations omitted). Thus,
consistent with the SSA’s policy (as expressed in, inter alia,
Section DI 25020.010B.1 of the POMS), the Court found that the ALJ
properly relied on the narrative portion of the state agency
psychological consultants’ mental RFC assessments in formulating
13
the mental RFC. Id.; see also Graham v. Saul, No. 1:18CV403, 2019
WL 3767041, at *12 (M.D.N.C. Aug. 9, 2019) (unpublished)
(concluding that ALJ “did not err by relying on [the state agency
consultant’s] narrative mental RFC assessment” because the check-
box portion of the form constituted “merely a worksheet to aid in
deciding the presence and degree of functional limitations,” and
“state agency consultants assess the actual mental RFC in the
narrative portion of the form” (citing POMS §§ DI 24510.060B.2.a
and 24510.010B.4)), recommendation adopted, 2019 WL 5783543
(M.D.N.C. Sept. 3, 2019) (unpublished) (Eagles, J.).
As made clear by the Court’s above-quoted reasoning,
Plaintiff’s argument overstates the holding of Weinshenker. By
finding that an ALJ need not account in the mental RFC for the
limitations in the worksheet portion of the state agency
consultants’ mental RFC assessments, the Court did not thereby deem
those worksheet limitations irrelevant to an analysis of the
consultants’ opinions. Here, the consultants did not define the
phrase “a work setting that does not require much interaction” in
their narrative regarding Plaintiff’s social interaction
limitations (Tr. 86, 100, 115, 130 (emphasis added)) and thus the
Court can look to the consultants’ individual findings in the
worksheet area above the narrative to help further define the
limitation the consultants intended. Because the consultants found
Plaintiff “[m]oderately limited” in her “ability to interact
appropriately with the general public,” but “[n]ot significantly
14
limited” in her abilities to “ask simple questions or request
assistance,” “accept instructions and respond appropriately to
criticism from supervisors,” and “get along with coworkers or
peers” (id. (emphasis added)), the ALJ’s RFC limitation to only
occasional interaction with the public harmonizes with the
consultants’ opinions.
In sum, Plaintiff’s first assignment of error lacks merit.
2. Opinions of Dr. Lowry
In Plaintiff’s second and final issue on review, she asserts
an entitlement to relief because “[t]he ALJ rejected the opinions
of [Plaintiff]’s treating psychiatrist [Dr. Lowry], but [the ALJ’s]
reasons for doing so are not supported by substantial evidence.”
(Docket Entry 13 at 14 (bold font and single-spacing omitted);
accord Docket Entry 16 at 4.) Plaintiff’s arguments in this regard
miss the mark.
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment. 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2) (“[T]reating sources . . . provide
a detailed, longitudinal picture of [a claimant’s] medical
impairment(s) and 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.”). The rule
15
also recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords an opinion. See 20 C.F.R. §§ 404.1527(c)(2)(ii),
416.927(c)(2)(ii). Moreover, as subsections (2) through (4) of the
rule detail, a treating source’s opinion, like all medical
opinions, deserves deference only if well-supported by medical
signs and laboratory findings and consistent with the other
substantial evidence of record. See 20 C.F.R. §§ 404.1527(c)(2)-
(4), 416.927(c)(2). “[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 (emphasis added). Finally,
statements from medical sources (and even treating sources) that a
claimant qualifies as disabled or cannot work do not constitute
“medical opinions as described in [§§ 404.1527(a)(1) and
416.927(a)(1)], but are, instead, opinions on issues reserved for
the Commissioner” and do not warrant controlling weight. 20 C.F.R.
§§ 404.1527(d), 416.927(d).5
5 For claims filed on or after March 27, 2017, the Commissioner has
significantly amended the regulations governing opinion evidence. The new
regulations provide that ALJs “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.”
20 C.F.R. § 404.1520c. As Plaintiff filed her claims prior to March 27, 2017
(see Tr. 16, 236-44), this Recommendation has analyzed Plaintiff’s claims
pursuant to the treating physician rule set out above.
16
Dr. Lowry completed a preprinted form entitled “Physician’s
Order” on July 17, 2017 (Tr. 601), on which she diagnosed Plaintiff
with “severe [post-traumatic stress disorder (‘PTSD’)] with panic,
agoraphobia, and depression.” (Tr. 601). Dr. Lowry stated that
Plaintiff “[wa]s literally housebound, highly symptomatic, and
unable to work at all.” (Id.) On April 25, 2018, Dr. Lowry signed
a “To Whom It May Concern” letter in which she opined, in pertinent
part, as follows:
[Plaintiff] has been my patient since December 12, 2016.
She has been diagnosed with Major Depressive Disorder,
severe vs. Bipolar Disorder with severe depression,
anxiety, and panic attacks.
[Plaintiff] has been a cooperative and compliant patient
who attends all her visits. She takes Effexor XR 300mg
every morning, Topamax 200mg twice a day, Zyprexa 20mg at
bedtime, Klonopin 1mg, 5 a day, and Ambien 20mg at
bedtime. She is in biweekly therapy with one of our
therapists.
In spite of ongoing treatment [Plaintiff] remains
extremely dysfunctional with continued severe depression
and anxiety. She frequently is afraid to leave her
house, stays on her couch or in bed all day, won’t eat or
bathe, can’t sleep, isolates from others, and is very
paranoid and fearful. She has an unhealthy attachment to
her mother and panics if she can’t get to her.
[Plaintiff] has no friends, no hobbies or interests,
nothing she cares about. She can’t concentrate, has
terrible memory, and no motivation for life. She can’t
tolerate the least amount of stress especially being
around others. Her prognosis is extremely poor.
In my medical opinion [Plaintiff] will never improve and
certainly not enough to be gainfully employed. I believe
she is totally and permanently incapacitated for any type
of work.
(Tr. 758.)
17
The ALJ evaluated and weighed Dr. Lowry’s opinions as follows:
The [ALJ] has considered the opinion of Dr. Lowry;
however, the [ALJ] has given little weight regarding the
conclusion that [Plaintiff] is “totally and permanently
incapacitated.” The medical evidence as a whole,
including progress notes from Dr. Lowry, have shown that
[Plaintiff] reported doing well with her medication
regimen, her cognitive functioning including memory have
been intact, and her mental status examinations have been
mostly within normal limits. In addition, the opinion of
disability is an opinion reserved for the Commissioner.
(Tr. 28.) Plaintiff challenges the ALJ’s decision to discount Dr.
Lowry’s opinions on two grounds (see Docket Entry 13 at 14-31),
neither of which provide the Court with a basis to disturb the
ALJ’s findings regarding Dr. Lowry.
First, Plaintiff faults the ALJ for according more weight to
the opinions of the state agency psychological consultants than to
Dr. Lowry’s opinions, because the consultants “did not review any
mental health medical evidence after March 2016, [Plaintiff]’s
testimony, or Dr. Lowry’s opinions, so the[ consultants’] opinions
are undercut by the paucity of evidence they reviewed.” (Docket
Entry 13 at 27 (citing Tr. 27-28); see also Docket Entry 16 at 7
(“[T]he Agency psychological consultants did not review any mental
health medical evidence after March 2016, including Dr. Lowry’s
opinions and treatment notes . . . .”).) According to Plaintiff,
“[a]n ALJ may credit the opinion of a non-treating, non-examining
source where that opinion has sufficient indicia of ‘supportability
in the form of a high-quality explanation for the opinion and a
significant amount of substantiating evidence . . .; consistency
18
between the opinion and the record as a whole; and specialization
in the subject matter of the opinion’” (Docket Entry 13 at 27-28
(quoting Brown v. Commissioner, 873 F.3d 251, 268 (4th Cir.
2017))), but argues that the consultants’ “opinions are bereft of
‘a significant amount of substantiating evidence,’ and undeserving
of great weight for the time period after March 2016” (id. at 28
(quoting Brown, 873 F.3d at 268); accord Docket Entry 16 at 8).
An ALJ must weigh opinions from non-examining state agency
consultants using the same factors the ALJ uses to weigh any other
medical opinions. See 20 C.F.R. §§ 404.1527(e)(2)(ii),
416.927(e)(2)(ii). As a general matter, opinions from an examining
source warrant more weight than those from a non-examining source,
see 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1); however,
non-examining state agency consultants constitute “highly qualified
physicians, psychologists, and other medical specialists who are
also experts in Social Security disability evaluation[,]” 20 C.F.R.
§§ 404.1527(e)(2)(i), 416.927(e)(2)(i), and, as a result, an ALJ
can permissibly credit the opinions of non-examining state agency
consultants over those of even a treating physician if the
consultants’ opinions remain consistent with the record as a whole.
See Lapeer v. Astrue, No. 5:08CV256, 2009 WL 2487038, at *7
(E.D.N.C. Aug. 13, 2009) (unpublished).
In this case, the state agency psychological consultants
opined that Plaintiff “demonstrate[d] the ability to carry out a
variety of tasks with a reasonable number and length of rest
19
periods,” “w[ould] adjust better to a work setting that d[id] not
require much interaction,” and “wiould] adjust best in a low
stress, predictable work routine.” (Tr. 86-87, 100-01, 115, 130.)
The ALJ accorded “significant weight” to the consultants’ opinions
(Tr. 27-28), whereas the ALJ assigned only “little weight” to Dr.
Lowry’s opinions (Tr. 28).
Plaintiff’s objection that the ALJ should not have credited
the state agency consultants’ opinions over those of Dr. Lowry
solely because the consultants provided their opinions without the
opportunity to review Plaintiff’s testimony and Dr. Lowry’s records
runs counter to logic. (Docket Entry 13 at 27-28); see also Docket
Entry 16 at 7-8.) State agency consultants provide RFC assessments
at the initial and reconsideration levels of the claims process and
thus necessarily offer their opinions prior to completion of the
record. Thus, under Plaintiff’s reasoning, the consultants’
opinions would never warrant significant weight. Moreover, as
stated above, the consistency of state agency consultants’ opinions
with the record as a _ whole, including those records post-dating
such opinions, constitutes the proper focus of the inquiry. See,
e.g., Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)
(holding that ALJs may rely on opinions of non-examining physicians
when such opinions find consistency with whole of record); Thacker
v. Astrue, No. 3:11CV246, 2011 WL 7154218, at *6 (W.D.N.C. Nov. 28,
2011) (unpublished) (“The fact that the state agency physician did
not have access to the entire evidentiary record — because the
20
record was incomplete at the time of the assessment — is
inconsequential as . . . there is nothing in the additional medical
evidence subsequently submitted by Plaintiff to indicate that she
possessed limitations beyond [the state agency consultant’s RFC].”
(internal citation omitted)), recommendation adopted, 2012 WL
380052 (W.D.N.C. Feb. 6, 2012) (unpublished); Bryant v. Astrue, No.
3:08CV719, 2009 WL 6093969, at *9 & n.11 (E.D. Va. Jul. 15, 2009)
(unpublished) (affirming ALJ’s decision to give non-examining state
agency consultants’ assessments great weight as consistent with the
entire record, even though such consultants “did not have the
opportunity to observe the claimant or the opportunity to consider
additional evidence submitted subsequent to their review of the
record”), recommendation adopted, 2010 WL 1138314 (E.D. Va. Mar.
18, 2010) (unpublished); Bracey v. Astrue, No. 5:07CV265, 2009 WL
86572, at *3 (E.D.N.C. Jan. 6, 2009) (unpublished) (finding no
error in ALJ’s reliance on state agency consultants’ opinions where
“treatment notes and clinical findings . . . submitted after
[their] assessments indicate[d] similar complaints and assessments
as those [they] reviewed” and noting that ALJ considered that
additional evidence, which did “not demonstrate a marked change for
the worse in [the] plaintiff’s health”).
Here, review of the evidence considered by the state agency
psychological consultants confirms that such evidence remains
consistent with evidence post-dating their opinions, including
Plaintiff’s testimony and Dr. Lowry’s treatment records. The
21
consultants had the benefit of Plaintiff’s mental health treatment
records from Rowan Psychiatric & Medical Services, PA, records from
Plaintiff’s primary care physician who also treated some of
Plaintiff’s mental symptoms, records from two visits to the
emergency room for psychiatric symptoms, as well as Function
Reports from both Plaintiff and her mother. (See Tr. 77-82, 91-96,
105-10, 120-25; see also Tr. 268-89, 342-442, 524-79, 584-96.) The
Function Reports reflect Plaintiff’s complaints of insomnia,
anxiety, social withdrawal, trouble concentrating, and problems
with her memory. (See Tr. 268-89.) The mental health records
indicate that Plaintiff reported increasing anxiety and depression
beginning in 2014 after her son’s motor vehicle accident in which
he lost his dominant arm, which ultimately caused Plaintiff to lose
her long-time job as a legal assistant and move back in with her
parents. (See Tr. 347, 414, 533, 592.) Those records also contain
Plaintiff’s statement during an October 2015 in-patient psychiatric
hospitalization that she had hit “rock bottom” and took extra
Klonopin and her mother’s Neurontin so she could sleep. (See Tr.
346-47.) With the exception of some positive findings upon
Plaintiff’s admission to her in-patient psychiatric hospitalization
(see Tr. 352) and some notations of depressed, tearful, and/or
anxious mood (see Tr. 347, 376, 534-35, 591, 594), the records
reflect largely unremarkable mental status examinations with good
hygiene, cooperative and pleasant demeanor, normal speech and
thoughts, intact insight and judgment, as well as normal attention,
22
concentration, and memory (see Tr. 347, 376, 529, 534-35, 585, 587,
589, 591, 594).
The state agency psychological consultants did not have the
opportunity to review Plaintiff’s hearing testimony, but that
testimony did not contain complaints of symptoms that differed
materially from those contained in the Function Reports and
treatment records the consultants did review. (See Tr. 54-55 & 58-
60 (documenting Plaintiff’s statements that she lacked motivation
and that her anxiety often kept her from doing things outside her
home), 61 (reflecting Plaintiff’s testimony reporting “nervous
breakdown” following loss of her legal assistant job and her son’s
motor vehicle accident), 64 (recording Plaintiff’s assertion that
she felt “defeated” and sad), 67 (describing Plaintiff’s belief
that she could not perform simple, seated job due to decreased
concentration and motivation).) Similarly, mental health treatment
records from Dr. Lowry’s practice (all of which post-dated the
state agency consultants’ opinions) continued to show similar
mental status examinations, with notations of depressed and/or
anxious mood and some psychomotor agitation and retardation, but a
casual appearance, an open, calm, and receptive demeanor, normal
speech and thoughts, intact cognition and memory, and a full-range
affect (see Tr. 665-68, 759-64).9 Because the mental health
9 The consultants also did not have an opportunity to consider two of Plaintiff’s
emergency room visits in late 2017. (See Tr. 669-81.) On each occasion,
Plaintiff complained of an increase in anxiety symptoms after running out of her
(continued...)
23
records post-dating the consultants’ opinions remain consistent
with the records the consultants reviewed, the ALJ did not err by
crediting the consultants’ opinions over those of Dr. Lowry.10
Second, Plaintiff disputes the ALJ’s rationale that “[t]he
medical evidence as a whole, including progress notes from Dr.
Lowry, have shown that [Plaintiff] reported doing well with her
medication regimen, her cognitive functioning including memory have
been intact, and her mental status examinations have been mostly
within normal limits” (Tr. 28). (See Docket Entry 13 at 15; see
also Docket Entry 16 at 5-8 (addressing same issue).) According to
Plaintiff, treatment notes from Dr. Lowry and Salisbury
Psychological Associates, as well as from other sources, support
Dr. Lowry’s opinions. (See Docket Entry 13 at 16-24 (citing Tr.
77, 81, 86-87, 91, 95, 100-01, 106, 110, 115, 121, 124-25, 130,
342-56, 525-27, 533-38, 540, 550, 584-92, 594, 595, 661, 665-72,
675, 678, 681, 690-91, 740, 742, 758-64).)
9 (...continued)
anxiety medication (and in the setting of her father’s recent death) (see Tr.
669, 675) and, apart from an anxious and/or tearful mood, her mental status
examination remained normal and neither physician would prescribe further anxiety
medication (see Tr. 671-72, 678, 681).
10 Plaintiff maintains that the state agency psychological consultants did not
“indicate that [Plaintiff] ‘showed stability and good functional ability,’ as the
ALJ asserted.” (Docket Entry 13 at 27 (quoting Tr. 27-28); see also Docket Entry
16 at 7.) In fact, the consultants did opine, in the Psychiatric Review
Technique portion of their assessments, that Plaintiff “showed current stability
and good functional ability,” “[wa]s able to learn and carry out a variety of
tasks in a low stress routine,” and w[ould] adjust better in a setting that does
not require much interaction.” (Tr. 82, 96, 110 (reconsideration-level
consultant affirming same) (emphasis added), 125 (reconsideration-level
consultant affirming same) (emphasis added).)
24
Plaintiff misinterprets this Court’s standard of review. The
Court must determine whether the ALJ supported his analysis of Dr.
Lowry’s opinion with substantial evidence, defined as “more than a
mere scintilla of evidence but may be somewhat less than a
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), and not whether other record evidence
weighs against the ALJ’s analysis, Lanier v. Colvin, No. CV414-004,
2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015) (unpublished) (“The
fact that [the p]laintiff disagrees with the ALJ’s decision, or
that there is other evidence in the record that weighs against the
ALJ’s decision, does not mean that the decision is unsupported by
substantial evidence.”). The ALJ here buttressed his decision to
discount Dr. Lowry’s opinions by noting, inter alia, that “[t]he
medical evidence as a whole, including progress notes from Dr.
Lowry, have shown that . . . [Plaintiff’s] mental status
examinations have been mostly within normal limits” (Tr. 28) and,
as discussed above, substantial evidence supports that rationale
(see Tr. 347, 376, 529, 534-35, 585, 587, 589, 591, 594, 665-68,
759-64).11
11 The ALJ’s summation paragraph contained within his RFC assessment provides
further reasons for discounting Dr. Lowry’s opinions that Plaintiff’s mental
symptoms disabled her:
[Plaintiff]’s reported activities of daily living, and her work
activity is inconsistent with an inability to work. Her alleged
onset date was predicated on her losing her job at Paws Plus, which
was due to the business closing and no way related to [Plaintiff]’s
allegations of disability. She applied for and received
unemployment benefits after losing her job, which indicates claimant
(continued...)
25
In Reply, Plaintiff maintains that, although the ALJ “rejected
Dr. Lowry’s statement that [Plaintiff] was ‘totally and permanently
disabled’” (Docket Entry 16 at 5 (quoting Tr. 758, and citing Tr.
28), “he failed to evaluate . . . Dr. Lowry’s opinion[s ] that
[Plaintiff] remained extremely dysfunctional being frequently
afraid to leave her home, stays on the couch or in bed all day,
doesn’t eat or bathe, can’t sleep, isolates from others, [] is very
paranoid and fearful[, ] has no motivation for life[,] and can’t
tolerate the least amount of stress, especially being around
others” (id. (citing Tr. 28)). As an initial matter, in the ALJ’s
evaluation of Dr. Lowry’s opinions, the ALJ did discuss all of the
above-listed statements by Dr. Lowry, making abundantly clear that
the ALJ considered them. (See Tr. 28.) Although the ALJ did not
expressly assign “little weight” to those statements, the ALJ’s
subsequent rationale that “[t]he medical evidence as a whole,
including progress notes from Dr. Lowry, have shown that
[Plaintiff] reported doing well with her medication regimen, her
cognitive functioning including memory have been intact, and her
mental status examinations have been mostly within normal limits”
11 (...continued)
was physically willing and able to work during this time. Further,
she was able to obtain work after her alleged onset date and her
work activity as a waitress was at substantial gainful activity
levels.
(Tr. 29.)
26
(Tr. 28) should leave the Court with no doubt that the ALJ rejected
them.12
In short, as the ALJ did not err in his evaluation of Dr.
Lowry’s opinions, Plaintiff’s second assignment of error lacks
merit.
III. CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for a
Judgment Reversing or Modifying the Decision of the Commissioner of
Social Security or Remanding the Cause for a Rehearing (Docket
Entry 12) be denied, that Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 14) be granted, and that judgment be
entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 10, 2020
12 Indeed, as the ALJ indicated (see Tr. 28), the record evidence contradicts
many of Dr. Lowry’s extreme statements (compare Tr. 55, 60 (Plaintiff’s testimony
that she drove to grocery store and pharmacy), 269, 272 (Plaintiff’s statements
on Function Report that she watches TV, works puzzles, reads, and cares for her
dog), 585, 587, 589, 591 (describing Plaintiff’s grooming as “good”), 594 (noting
Plaintiff’s “clean” grooming and “appropriate” appearance), 643 (Plaintiff’s
statement to primary care physician that a “friend” had checked her blood sugar
and that she was “eating well”), 665 (Plaintiff’s assertion to counselor at Dr.
Lowry’s practice that Plaintiff avoided going to large and busy public places
like WalMart, the movies, the fair, and some restaurants), and 665-68, 759-64
(Dr. Lowry’s treatment records containing no references to lack of hygiene or
grooming), with Tr. 601 (Dr. Lowry’s statement that Plaintiff remained “literally
housebound”), and 758 (Dr. Lowry’s statements that Plaintiff had “no hobbies or
interests, nothing she cared about,” had “no friends,” “won’t eat,” and “won’t
. . . bathe”).
27