South Carolina Cases December 15, 2020: Thurston v. Saul

Case Description

REPORT AND RECOMMENDATION

This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.

A. Procedural History

Plaintiff filed an application for DIB and SSI on August 29, 2016, alleging inability to work since June 22, 2016. Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on April 25, 2018, at which time Plaintiff and a vocational expert(VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on July 19, 2018, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 208). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council granted and remanded the case back to the ALJ. (Tr. 13). Hearings were held on February 28, 2019 and on March 28, 2019. The Administrative Law Judge (ALJ) issued an unfavorable decision on April 17, 2019,

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finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 13-30). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on July 16, 2019, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff filed this action on August 26, 2019. (ECF No. 1).

B. Plaintiff's Background and Medical History

Plaintiff was born on May 28, 1970 and was forty-six years old at the time of the alleged onset. (Tr. 28). Plaintiff had at least a high school education and had past relevant work experience as a bus driver. (Tr. 28). Plaintiff alleges disability initially due to coagulation defect, hematological disorder, stroke, high blood pressure, high cholesterol, diabetes, seizures, vision problems, depression, and headaches. (Tr. 157-158).

2016

On June 21, 2016 through June 24, 2016, Plaintiff was admitted to the hospital. Diagnosis/active problem list was stroke (cerebrum), hypertension, hyperlipidemia, migraine, analgesic overuse headache, received IV tPA, snoring, and diabetes. (Tr. 601). A brain MRI showed a single 5 mm high signal focus on FLAIR and T2 in the posterior superior right frontal lobe white matter nonspecific in appearance. (Tr. 601). A CTA angiogram showed no evidence of intracranial vascular pathology. (Tr. 601). Plaintiff reported having a severe headache then her right arm tingling with leg heaviness, right leg decreased sensation, right face decreased sensation, and dizziness. She felt as if she has been pushing a lawnmower for several hours. (Tr. 602). "Her symptoms were almost completely resolved by the next day." The MRI T2 was likely due to migraines. (Tr. 602). Numbness of her fingertips was possibly a side effect of Topamax. (Tr. 602). Acute ischemic stroke could not be ruled out but presentation may be more consistent with complex migraine. (Tr. 602).

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On July 14, 2016, Plaintiff was seen by PA Hudgens of New Horizon Family for diabetes. (Tr. 725). Plaintiff's hospital stay was noted. Plaintiff still had some trouble walking with her right leg and was still getting headaches. Plaintiff was to follow up with neurology. Plaintiff was concerned about going back to work and wanted a note. (Tr. 725). Upon exam, Plaintiff ambulated normally. Plaintiff had abnormal flat affect. Plaintiff had 4/5 strength of right lower extremity. (Tr. 727). Topamax was increased for her headaches. For paresis of lower extremity, Plaintiff would have to be evaluated by physical therapy before clearance to return to work. (Tr. 727-28). Prozac was refilled for depressive disorder. (Tr. 728).

On July 29, 2016, Plaintiff presented to the emergency room. Diagnosis were unspecified convulsions and migraine not intractable. (Tr. 688). There was no CT evidence of acute intracranial abnormality. (Tr. 692).

On August 3, 2016, Plaintiff was seen by PA Hudgens. Plaintiff reported seizures the day prior. (Tr. 733). Plaintiff had been seen in the hospital for another seizure. Plaintiff reported she could feel when the seizures were about to start. Plaintiff's husband stated her lip and hands draw up and her feet start to shake and draw up, and seizures generally last 2-5 minutes. Plaintiff also asked about short term disability paper work. (Tr. 733). Upon exam, Plaintiff had abnormal, flat affect, 4/5 strength of right lower extremity, and intermittent drawing up on right side of mouth. (Tr. 735). Topamax was increased and Ativan was prescribed until Plaintiff could see neurology. (Tr. 735). Plaintiff was also referred to occupational therapy and speech therapy. (Tr. 735).

A sleep study on August 4, 2016 showed mild obstructive sleep apnea with two episodes of myoclonic activity, but it was noted that such activity increased when Plaintiff's husband recorded Plaintiff on his cell phone and Plaintiff was "in stage wake preceding these events." (Tr. 739).

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On August 10, 2016, Plaintiff was seen by neurologist Dr. Smith. (Tr. 749). As history, Plaintiff's remaining symptoms after hospital discharge were partial right eye ptosis, psychomotor slowing, difficulty walking with right lower extremity weakness and instability, and generalized poor balance. (Tr. 749). Later episodes were described as staring blankly into space, right leg shaking, face turning very red, arms and legs shake and muscles spasm to straighten legs or pull into a fetal position with such episodes lasting 3-5 minutes and two to three times a day. Plaintiff is aware of her surroundings, cannot talk, and feels that she cannot breath. Plaintiff does not lose consciousness. (Tr. 749). Episodes frequently occur while she is asleep. (Tr. 749). "It is noted that she experienced several of these episodes while observed by medical professionals at physical therapy and during the sleep study." Plaintiff continued with headaches. Plaintiff and Plaintiff's husband cried while describing stressors of excessive emotional stress with death of family members, husband's work injuries, and threat of foreclosure. (Tr. 750). Family history was similar for sister and mother that began with migraines, then strokes, and finally seizures. (Tr. 750). Plaintiff reported gait abnormality, problems thinking, poor concentration, imbalance, depression, and high stress level. (Tr. 750). Upon exam, speech was clear and slow. Concentration and attention were normal. (Tr. 751). There was no facial weakness. (Tr. 751). All strengths were 4/5 and there was very slight increase in tone of right extremities with bradykinesia noted with all hand movement. (Tr. 752). "Gait was slow with right leg lagging and magnetic with increased tone with walking. Able to walk without assistance, but unsteady and slow." (Tr. 752). Clonus reflex was absent. "While performing motor exam, she began to have episode as described in attestation of Dr. Rayes." (Tr. 752). Upon exam, Plaintiff had psychomotor slowing with blunted affect, frequently looking to husband to answer questions. (Tr. 753). Plaintiff's husband stated the episode observed during the exam was

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similar to those at home. "During this event, she did not lose consciousness, noticed her surroundings, did not experience bowel or urinary incontinence, and did not bite her tongue. Onset began with bilateral arms shaking while she was standing and progressed to involve pelvic thrusting with upper and lower extremity spasticity and upper extremity catatonic like placement. She describes that these episodes are often associated with migraine. She also describes recent extreme emotional stress." (Tr. 754). Plaintiff was not to be near pools, sharp objects, or driving.

A September MRI showed no significant intracranial abnormality. (Tr. 936).

On September 12, 2016, Plaintiff completed a function report. (Tr. 465). Plaintiff reported she had a blood clot in her head and it caused her to have a stroke in June, then in July she started having seizures every day. (Tr. 465). Plaintiff reported her daily activities as wake up, have a seizure, take medication, try to clean, but if she gets hot or nervous, she has another seizure. (Tr. 466). Plaintiff reported she had seizures during the night several times and it gives her bad headaches. (Tr. 466). Plaintiff reported she had seizures while eating. (Tr. 466). Plaintiff takes all day to do dishes and laundry; she must take her time so she does not have a seizure. (Tr. 467). "I can't drive and I can't walk around the block without having seizures." (Tr. 468). Plaintiff shops 45 minutes once a week. Plaintiff reported reading too much causes seizures. (Tr. 469). Plaintiff reported drowsiness from Lorazepam. (Tr. 472).

On October 6, 2016, Plaintiff was seen by PA Hudgens. (Tr. 927). Plaintiff reported difficulty with seizures that were stress-induced with normal EEG. Upon exam, Plaintiff had flat affect and poor insight with 4/5 right lower extremity strength. Plaintiff had a 3-4 minute episode of shaking of hands and legs, hands drawing up, then started hitting her forehead with her fists, holding her breath, making sounds with her mouth, but was holding herself up in the chair the entire time.

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Plaintiff also had "?intermittent drawing up on the right side of her mouth." (Tr. 929)(as in original). Movements were not consistent with generalized seizure and Plaintiff was able to answer questions after the 4 minute episode. Plaintiff was stuttering afterwards but did remember immediately after that the nurse still had her paper work from her neurologist. Topamax was increased. Plaintiff was not to drive. (Tr. 929).

On November 17, 2016, Plaintiff was seen by NP Madubuike of Neurology. (Tr 820). "Patient states she does not feel like herself today. Patient is having intermittent non rhythmic shaking of whole body, attempting to roll her eyes back, screaming out, facial grimacing, and stuttering speech. Patient at a point remained quiet and listened, and then she requested medication refill and her medical records." (Tr. 820). Plaintiff's husband reported a psychiatrist would not take her saying "her psyche issues were too much for him to handle." Plaintiff's husband reported very frequent episodes at home. (Tr. 820). Upon exam, speech was fluent with intact repetition, comprehension, and naming. (Tr. 821). Plaintiff was in no distress. Strength was 5/5. Plaintiff was referred to psychiatry.

On December 1, 2016, Dr. Junker, M.D., performed a consultative examination. (Tr. 771). Some records were reviewed. Plaintiff reported an EEG had been done and she was negative for seizure activity. Plaintiff reported she was diagnosed with pseudo seizures, the first psychiatrist refused to treat her, and she had a different appointment pending. (Tr. 772). Plaintiff had a history of headaches, depression, diabetes, and hypertension. (Tr. 772). Plaintiff reported she mainly sits at home and shakes a lot and cannot do much. (Tr. 772). Gait was somewhat unsteady. "She used a rolling walker. She says she uses that in case of seizures. She had a little bit of a stilted gait which was almost moonwalk-like and she had lots of stilted movements off and on throughout the exam."

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(Tr. 773). "Her mood, affect, and behavior were a little bit stressed. Initially, she was so agitated that I offered to reschedule." Plaintiff then calmed and did well the rest of the exam. Plaintiff could spell 'world' and 'fish' backwards but not forward. Plaintiff could not do serial 7s or 3s or do cash transactions well. Plaintiff was afraid she would fall and therefore was unable to do various walks, but she showed good heel toe strength when stationary. (Tr. 774). Plaintiff had 5/5 strength and gave good effort and such testing. (Tr. 774). "She was very wobbly doing the Romberg, but she was able to accomplish it without falling." (Tr. 774). Plaintiff did not need a rolling walker and Dr. Junker was not sure it would help her in the event of a seizure. (Tr. 774). A psychiatric exam was pending. (Tr. 774).

On December 12, 2016, Plaintiff was seen by Dr. Hammond, Ph.D. for a consultative exam. (Tr. 777). Plaintiff was scheduled for a psychological evaluation but was only able to participate in a mental status exam. It was observed that Plaintiff was completely dependent on her husband for social interaction. Plaintiff had to be pushed on the rolling walker in a seated position to exit the building. Dr. Hammond observed:

She had a very dramatic and unusual presentation. She was writhing and intermittently, and apparently fairly intentionally, moving her hands about, giving the appearance of automatic behaviors such as grasping a pencil, grasping at paper, or even gripping the psychologist's shirt at one point. She darted her tongue in and out. She engaged in some babbling. Her eyes looked upward and then downward. She fought with her husband in terms of handing him a pencil or other items. She seemed intentionally to withdraw these when he reached for them. She had to catch her breath several times. When she attempted to talk, this was typically stuttering and she could get out only a word or so in a period of 15 to 20 seconds.

(Tr. 777). "She was unable to provide verbal responses and history was obtained from her husband. She also was unable to write or draw effectively." (Tr. 777). Plaintiff's husband reported Plaintiff had seizures up to five times a day lasting up to 30 minutes and he observed them through the night.

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Plaintiff's husband reported Plaintiff's current presentation in the office was what he called her having a seizure. "While doing so, as noted, she was engaged in purposeful motor behavior and babbling." (Tr. 778). Plaintiff had not been able to see a psychiatrist yet. Plaintiff dressed herself that morning "between seizures." (Tr. 779). Plaintiff can assist in cooking and some laundry with supervision. "Her husband indicated any stress around the house or elsewhere will precipitate a seizure." (Tr. 779). Stress and noise may precipitate "seizures." (Tr. 779). On one test, Plaintiff simply drew a looping circle and did not attempt the requested task. Rather than repeat a five item word list, Plaintiff just said "baby" repeatedly. (Tr. 779). When asked to name as many fruits as she could, Plaintiff answered "baby, banana, dead baby, baby, baby, baby." (Tr. 780). When asked for the date, she stated today and would not attempt to provide a month. When asked to identify visual objects, Plaintiff looked straight up and kept her eyes up. When asked to identify a "zebra," she stated "dog." A peacock, tiger, and butterfly were also identified as dogs. (Tr. 780). It was very difficult to determine a diagnosis as Plaintiff was not cooperative. Dissociative or a somatoform disorder could not be ruled out. "She did demonstrate what appeared to be volitional acts, but it was not possible to determine if these were consciously or unconsciously evoked." Possibility of intentional embellishment could not be ruled out. (Tr. 780). Plaintiff was not able to execute simple tasks during the evaluation and the manner she presented at the evaluation would be a danger to the workplace. (Tr. 781).

2017

On January 17, 2017, Plaintiff was seen by PA Hudgens and Dr. Knowles. (Tr. 923). Plaintiff reported "seizures" are brought on by anxiety and stress. (Tr. 925). Upon exam, Plaintiff had poor insight. She had another episode similar to her prior visit where she started jerking and clinching

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her jaw but she was responsive during the episode and sat upright in the chair throughout the event that lasted 2-3 minutes. (Tr. 925). Plaintiff had a flat, abnormal affect. Memory was normal. Plaintiff had 4/5 strength in right lower extremity. Plaintiff had "?intermittent drawing up on the right side of her mouth." (Tr. 925)(as in original). Assessment was dissociative convulsions. Plaintiff was asked if she realized pseudo seizures were not real seizures. "She said she did, but her and her friend did not seem to grasp this completely." Plaintiff needed a mental health referral. (Tr. 925).

A CDI investigation was performed in January 2017. (Tr. 783). A pharmacy employee considered Plaintiff a normal customer with no noticeable limitations. (Tr. 790). The same was said by another store employee. Plaintiff's neighbor reported seeing Plaintiff walking outside with her daughter and driving at times. (Tr. 791). Upon the investigative ruse, Plaintiff was observed displaying limited use of hands and arms, did not dart tongue or babble, then Plaintiff appeared to have a seizure for twenty seconds and a wheelchair was pushed out for Plaintiff to sit in. After sitting, Plaintiff was able to communicate again. (Tr. 791).

On February 7, 2017, state agency reviewing consultant, Dr. Corlette, M.D. found an RFC with some postural limitations citing pseudoseizures. (Tr. 166-168). On April 3, 2017, Dr. Walker affirmed this assessment. (Tr. 185). On February 1, 2017, state agency reviewing consultant, Dr. Ward, Ph.D. opined limitations of moderately limited in ability to maintain attention and concentration for extended periods and moderately limited in ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 168-69). On April 4, 2017, Dr. Warren affirmed this assessment. (Tr. 187). Plaintiff would not be precluded from performing simple repetitive work tasks and was able to maintain concentration and attention for

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periods of at least two hours. (Tr. 187).

On February 7, 2017, Plaintiff was seen by NP Madubuike of Neurology. (Tr. 810). Plaintiff's husband reported CBD oil was controlling her seizures. Stress and excitement triggers seizures. Plaintiff has 1-2 "seizures" daily. EEG was diagnostic for "psychogenic nonepileptic seizures." Plaintiff reported she only had migraines when she had seizures. (Tr. 810). Psychiatry noted "they were directed not to take the patient by their professional clinical therapist." (Tr. 810). Upon exam, speech was fluent with intact repetition, comprehension, and naming. (Tr. 811). Plaintiff was in no distress. Strength was 5/5.

On March 27, 2017, Plaintiff was seen by Dr. Hossain of Anmed Health Psychiatry and it was noted some sensitive notes were blocked. (Tr. 868).

On April 11, 2017, Plaintiff was seen by Dr. Hossain. (Tr. 864). Plaintiff reported feeling less depressed and anxious overall. Plaintiff had one panic attack since her first appointment. Medications helped, but Plaintiff felt somewhat sedated. Plaintiff gets emotionally overwhelmed quickly and she has needed a third dose of clonazepam twice a week. (Tr. 864). Sedation was indicated as a medication side effect. Upon exam, Plaintiff had slow behavior/activity, cooperative and guarded attitude, depressed and anxious mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. (Tr. 865). Thought content was fear of panic attacks. Medication changes were made. (Tr. 865).

On April 24, 2017, Plaintiff was seen by Dr. Hossain. (Tr. 861). Plaintiff reported her mood was improving slowly, she feels less depressed, and she is not crying all the time. Plaintiff is having 1-2 panic attacks per week. Plaintiff had one episode of depersonalization/derealization the last week but could not identify a specific stressor except for fleeting disturbing memories. Plaintiff went to

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church but did need half a Klonopin because crowds made her very nervous. Tiredness may be caused by Clonazepam. (Tr. 861). Upon exam, Plaintiff had slow behavior/activity, cooperative attitude, anxious and sad mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. (Tr. 862). Medication changes were made. Plaintiff was encouraged to restart individual therapy. (Tr. 862).

On May 23, 2017, Plaintiff was seen by Dr. Hossain. Plaintiff had increasing headaches since not being on Topamax since she was not having seizures anymore. Plaintiff continued to struggle with depression and anxiety. Plaintiff had one panic attack since her last appointment. Upon exam, Plaintiff had slow behavior/activity, cooperative and guarded attitude, depressed and anxious mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. (Tr. 858).

At a May 31, 2017 visit with Dr. Seemuller, Plaintiff had normal mood/affect. (Tr. 972).

On June 22, 2017, Plaintiff was seen by Dr. Hossain. Plaintiff reported fairly stable mood and two panic attacks since last appointment. Plaintiff's husband reported one derealization episode that lasted a couple of hours where Plaintiff seemed not really there. Plaintiff struggles with depression and occasionally a sense of vague paranoia. (Tr. 852). Upon exam, Plaintiff had slow behavior/activity, cooperative and guarded attitude, depressed mood, dysthymic and mood congruent affect, and restricted range of affect. (Tr. 853). Medication changes were made. (Tr. 853).

On July 28, 2017, Plaintiff was seen by Dr. Hossain. (Tr. 848). Plaintiff reported continuing to feel depressed and tired. Plaintiff felt sad that she cannot work. Plaintiff reported tight finances. Plaintiff attends church regularly. Plaintiff had one panic attack since her last appointment when she was getting ready to go out. Tiredness could be related to sedative effects of risperidone and clonazepam. (Tr. 848). Upon exam, Plaintiff had slow behavior/activity, cooperative and guarded

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attitude, dysthymic and mood congruent affect, and restricted range of affect. (Tr. 849). There were medication changes and Plaintiff was to start individual therapy. (Tr. 849).

On August 7, 2017, Plaintiff was seen by NP Madubuike of Neurology. (Tr. 800). Plaintiff had no further nonepileptic spells since starting psychiatric medications of Risperdal, Klonopin, and Prozac. Plaintiff reported her headaches were well controlled with Topamax and Fioricet. Plaintiff wanted to resume driving and had experienced significant improvement since March with no further nonepiletic spells. Care was planned to be transferred to her primary care doctor. (Tr. 800). Upon exam, speech was fluent with intact repetition, comprehension, and naming. (Tr. 802). Plaintiff was in no distress. Strength was 5/5.

On August 29, 2017, Plaintiff was seen by Dr. Hossain. (Tr. 844). Plaintiff reported her mood was a little better and she was somewhat less anxious. Plaintiff had not had any panic attacks since her last appointment. Depression was slightly better. "She still has a tendency to get overwhelmed easily." Plaintiff was gradually driving more. Plaintiff reported finances were very tight and she started seeing a counselor. (Tr. 844). Upon exam, Plaintiff had slow behavior/activity, depressed mood, dysthymic, anxious and mood congruent affect, and restricted range of affect. (Tr. 844-845). Plaintiff was to continue medications and individual therapy. (Tr. 845).

On September 1, 2017, Dr. Seemuller, who followed Plaintiff for diabetes and cholesterol, stated if a psychiatrist cleared her to drive a bus, he could clear her from a diabetes standpoint. Psychiatric meds would likely exclude her. (Tr. 992). Plaintiff had asked if she could resume bus driving. (Tr. 993). Plaintiff had normal behavior, mood, and affect. (Tr. 994).

On October 10, 2017, Plaintiff was seen by Dr. Hossain. (Tr. 840). Plaintiff reported feeling better in terms of depression and anxiety. Plaintiff had not had a panic attack since her last

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appointment. Plaintiff still feared such attacks. Plaintiff reported various stressors. (Tr. 840). Upon exam, Plaintiff had normal behavior/activity, dysthymic, anxious, and mood congruent affect, and restricted range of affect. (Tr. 841). Plaintiff was to continue medication regimen and therapy with LPC Tingle. (Tr. 841).

On December 11, 2017, Plaintiff was seen by Dr. Hossain. (Tr. 836). Plaintiff reported being worried about finances. "Patient does not feel that she could work on a consistent basis. Some days, she gets very anxious. She continues to struggle with depression. She has panic attacks once or twice a week." (Tr. 836). Upon exam, Plaintiff had slow behavior/activity, depressed and anxious mood, mood congruent, dysthymic, anxious, and restricted in range affect. (Tr. 837). Plaintiff was given information about vocational rehabilitation services. (Tr. 837).

2018

On January 2, 2018, Plaintiff was seen by Dr. Hossain. (Tr. 832). Plaintiff was an unscheduled, work-in visit. Plaintiff reported she was behind on her house payment and had no income. "She is here today to request a letter stating that she is totally disabled; she states that such a letter would help her be excused for inability to make house payments. She feels depressed with periods of hopelessness and helplessness." Plaintiff had one panic attack at home since her last appointment, but it was mild. (Tr. 832). Upon exam, Plaintiff had slow behavior/activity, worried and depressed mood, mood congruent, depressed, mildly anxious, and restricted in range affect. (Tr. 833). Plaintiff was to continue current medication regimen. "Patient given letter per her request stating that she is totally and permanently disabled secondary to mental illness." (Tr. 833).

On February 8, 2018, Plaintiff was seen by Dr. Hossain. (Tr. 827). Plaintiff complained of feeling more depressed, anxious, and irritable. Plaintiff reported two episodes were she felt weird

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and hit herself for a few minutes but stopped because she came back to reality. Plaintiff reported she had been feeling very worried about bills. Plaintiff had three panic attacks since last appointment, one in a grocery store. (Tr. 827). Upon exam, Plaintiff had slow behavior/activity, depressed and irritable mood, dysthymic, irritable and mood congruent affect, and mood congruent and restricted range of affect. (Tr. 828). Risperidone was increased. "Patient would benefit from individual therapy but states that she cannot afford it." (Tr. 828).

On March 12, 2018, Plaintiff was seen by Dr. Hossain. (Tr. 823). Plaintiff reported she feels better in some ways because she is no longer having depersonalization/derealization episodes. Plaintiff continued to feel depressed because of financial situation. Plaintiff still has a fear of panic attacks and had two since her last appointment. One was at church and one was at home. "Patient tends to get easily overwhelmed even under minimal stress. She cannot focus or concentrate if she becomes 'too emotional.'" Upon exam, Plaintiff had anxious and sad mood and dysthymic, anxious and mood congruent affect; range of affect was mood congruent and restricted. (Tr. 824). Diagnosis were moderate major depressive disorder, panic disorder without agoraphobia, depersonalization-derealization disorder, and insomnia. Medications were refilled. "Patient unable to come to more frequent appointments because of transportation and financial difficulties." (Tr. 824).

On April 3, 2018, Dr. Hossain completed a questionnaire. (Tr. 873). Plaintiff was seen every two months from March 2017 and Plaintiff could not attend more frequent visits. Diagnosis were panic disorder without agoraphobia, major depressive disorder recurrent, moderate, depersonalization-derealization disorder, and insomnia. Plaintiff had pseudo seizures per neurology and questions about such were directed to neurology. (Tr. 871). Plaintiff needed to take unscheduled breaks 1-2 times a week for three to four hours. (Tr. 873). Plaintiff was incapable of even "low

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stress" jobs due to severe anxiety, chronic depression, and periods of depersonalization/derealization. (Tr. 873). Plaintiff had depression, poor self-esteem, short attention span, and panic disorder. Plaintiff would be absent from work as a result of impairments or treatment more than four days per month. Plaintiff decompensated emotionally even under minimal stress. (Tr. 873).

On May 10, 2018, Plaintiff was seen by Dr. Hossain. (Tr. 892). Plaintiff stated she had no income and could not afford gas money. Her son transported her to appointment. Plaintiff reported her headaches were worse. Plaintiff continued to struggle with chronic depression and anxiety. Plaintiff had one panic attack in the store with her daughter a couple of weeks prior and took an extra Klonopin which helped. Most of the time she does not need the extra Klonopin. Plaintiff had two episodes since her last appointment where she felt unlike herself, strange and uneasy, but it did not last long. (Tr. 892). Upon exam, Plaintiff had slow behavior/activity, cooperative attitude, depressed mood, dysthymic and mood congruent affect, and restricted range of affect. (Tr. 893). "Patient would benefit from individual therapy but does not have the transportation to get to more appointments." (Tr. 893).

On May 29, 2018, Plaintiff was examined by consultative examiner, Dr. Price, Ph.D. (Tr. 876). Plaintiff's driver's license was issued on May 13, 2016. "She seemed under the influence of some substance. Her facial expressions and verbalizations appeared to have some exaggerated affect." "She had questionable cooperation and effort in this evaluation." Plaintiff required physical assistance to walk and sit with Plaintiff's husband stating she was unstable. "She was observed walking to her vehicle with her husband in the parking lot requiring no assistance." "Her eye contact was quite variable and almost avoidant. Interestingly, she grinned when she was asked about anxiety. She would take a long time to answer questions." (Tr. 876). Thought content was normal and

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thought processes appeared to be linear and nonpsychotic. (Tr. 876). "Her affect appeared to be a little negative but almost had a faint air to it. She is little hyporeactive. She was not psychotic. There is questionable motivation and effort on the evaluation, and in fact, she may not have been trying to do her best. She was indifferent to things she could do." (Tr. 877). Plaintiff had no problems understanding. "Because of her lack of effort, I could not rate her concentration." Plaintiff was evasive and a poor historian. (Tr. 877). Plaintiff's mood appeared to be bewildered more than anything. Plaintiff had questionable effort on mental testing. Plaintiff recalled 2 of 5 words after several minute delay. Plaintiff avoided eye contact. "The affect appeared to be a little exaggerated and the misses were like near misses." "I guess Ms. Thurston can follow instructions. Hard to tell whether she can relate to others. Hard to tell whether she can manage her own funds." (Tr. 877). Plaintiff appeared more functional than the form she completed and the form appeared to contain some exaggeration. (Tr. 878). "I do not put much credibility to her responses." (Tr. 878). Plaintiff can talk with people face to face and keep appointments on time. Plaintiff can shop at a store for five items. (Tr. 878). Plaintiff can care for a child. Plaintiff reported she cannot wash dishes, do laundry, or cook meals. (Tr. 878). "Dr. Hossain gives her Clonazepam for seizures. This is actually a sedative. He says she gets fluoxetine for depression and risperidone for seizures. I do not see anywhere where she has seizures." (Tr. 879). Plaintiff reported Dr. Hossain says she has panic attacks. Plaintiff reported crying spells two to three times a week. Plaintiff reported when she gets anxious, she gets real shaky and her heart races. The only diagnosis was probable malingering. (Tr. 879). "I guess she has a mild impairment in activity of daily living." "You might write her as having a mild impairment in social function. I am not going to write her or suggest writing for concentration persistence and pace due to lack of effort." (Tr. 879-80). The examiner noted no conventional

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seizure medications or record of stroke or vertigo, noting "I think there is a lot of exaggeration going on." (Tr. 880). Dr. Price also completed a form. (Tr. 883). Written in was no limitation in ability to understand, remember and carry out instructions because he felt Plaintiff was engaging in symptom exaggeration. (Tr. 881). It was noted he diagnosed probable malingering and could not rate pace due to that. (Tr. 882).

On July 5, 2018, Plaintiff received a psychiatric evaluation from Dr. Mullen, M.D. (Tr. 885). Plaintiff's chief complaints were difficulty thinking, seizure, depression, and easy fatigue. Plaintiff's history was recounted and Plaintiff was currently stable with treatment for her depression, anxiety, and depersonalization-derealization disorder. Plaintiff reported her mood was fair but walks very slowly and feels weak all the time. "She gets confused easily. She has had crying spells, weight fluctuation, and some irritability, plus she will have a spell of trembling and shaking, a seizure, whenever she gets heated or excited in any way." (Tr. 885). Upon exam, Plaintiff's psychomotor speed was very slow. Plaintiff had difficulty walking. Plaintiff had slight asymmetry in her smile that worsened when excited or depressed. Plaintiff's affect was depressed and flat. Plaintiff's memory was fair and had poor activity level. Thought process and content was generally appropriate but was very slow and simplified. "Her intelligence seemed fair but as if she cannot access her thoughts very easily." (Tr. 886). "The important thing to note here is that [there is] some confusion what to call her condition." You can "have seizures and still have negative EEGs." "A preferred term would be a dissociative seizure or maybe even a functional seizure." By any name, Plaintiff has epistemologic and clinical difficulties. Dr. Price's evaluation was reviewed and Dr. Mullen noted: "His evaluation is helpful and thorough, however he does not justify his diagnosis 'probable malingering.' His conclusions are full of guesses - 'I guess she has a mild impairment in activity of daily living and a

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mild impairment in social function' and then he states 'she has lack of effort' - I do not believe any of that. All of that is just what he has chosen to call Mrs. Thurston's presentation to his office for mental status examination. He gave her no psychological testing and he believes that most of her complaints are merely conjured up by the patient and there exists no involuntary aspect to her case. I think he is wrong about this and his report has a misleading, terribly misleading, diagnosis and conclusion." (Tr. 887). Dr. Mullen diagnosed severe major depression, severe generalized anxiety, possible somatoform disorder versus dysautonomia, obsessive compulsive traits, and a GAF of 45. (Tr. 887). It was clear Plaintiff had suffered some kind of central nervous system dysfunction but there was some question exactly what to call it but that was unnecessary to determine her degree of dysfunction. (Tr. 888). There was nothing in her medical record to support a diagnosis of malingering, except "a little quarreling among neurologists about what to call her condition exactly." (Tr. 888). Medications help her have moments when she is not threatened by loss of touch with reality. "Otherwise, she is at risk at any moment to go into a quaking, trembling fit." (Tr. 888). "She is not a candidate for the active work force in any capacity." Plaintiff had made some improvements but had a long way to go before she could ever be employed again and it was questionable whether any employer would hire her. (Tr. 888). Dr. Mullen completed a form also. (Tr. 891). Dr. Mullen opined that complex tasks will stress Plaintiff to the point of seizures as support for marked limitations in ability to make judgments on complex work-related decisions. Plaintiff had mild limitation in ability to carry out simple instructions and moderate limitation in ability to make simple, work-related decisions. (Tr. 889). Plaintiff had extreme limitation in ability to interact appropriately with supervisors and marked with public or coworkers because any demand situation produces stress response and Plaintiff is overwhelmed. Plaintiff also had cognitive slowing, frequent,

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severe headaches, and dissociative seizures. (Tr. 890). Other clinical notes were reviewed and supportive. (Tr. 890).

On July 10, 2018, Plaintiff was seen by Dr. Hossain. (Tr. 898). Plaintiff continued to struggle with depression and anxiety on a daily basis. Finances continued to be extremely tight. Gas money was difficult. (Tr. 898). Plaintiff felt depressed with periods of hopelessness and helplessness. Plaintiff is having 1-2 panic attacks per week. (Tr. 898). Upon exam, Plaintiff had slow behavior/activity, cooperative attitude, depressed, worried mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. (Tr. 899). Medications were continued.

On October 10, 2018, Plaintiff was seen by Dr. Hossain. Plaintiff reported feeling worse. Plaintiff's mother died in August. Plaintiff had a lot of tearful episodes. Plaintiff had panic attacks twice a week. Finances were tough. (Tr. 904). Upon exam, Plaintiff had slow behavior/activity, cooperative attitude, sad mood, dysthymic, tearful, and mood congruent affect, and restricted range of affect. (Tr. 905). Prozac was increased. (Tr. 905).

On November 7, 2018, Plaintiff was seen by Dr. Hossain. (Tr. 910). The Prozac increase helped to some extent. Tearful episodes had decreased. Plaintiff had one panic attack in the month since her last appointment. Plaintiff was still sleeping 9-10 hours a night and spending a couple of hours in bed every day during the day. (Tr. 910). Upon exam, Plaintiff had slow behavior/activity, cooperative attitude, sad mood, dysthymic and mood congruent affect, and restricted range of affect. (Tr. 911). Medications were decreased due to excessive tiredness. (Tr. 911).

On December 7, 2018, Plaintiff was seen by Dr. Hossain. Plaintiff reported her mood was improving. She felt less tired with more motivation. Plaintiff was doing more chores and doing field work with church. Plaintiff did not have any panic attacks or episodes of depersonalization-

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derealization since her last appointment. (Tr. 916). Upon exam, Plaintiff had normal behavior/activity, cooperative attitude, better mood, euthymic and mood congruent affect, and reactive range of affect. (Tr. 917).

2019

On February 7, 2019, Plaintiff was seen by Dr. Hossain. (Tr. 1037). Plaintiff reported her overall anxiety level is higher. Plaintiff had one panic attack since her last appointment. "Ongoing stressors include severe financial difficulties." Plaintiff felt depressed, anxious, and overwhelmed. (Tr. 1037). Upon exam, Plaintiff had normal behavior/activity, cooperative attitude, depressed and anxious mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. Plaintiff had thought content of fear of panic attacks. (Tr. 1038).

On February 19, 2019, Dr. Hossain completed a form. (Tr. 1047). Plaintiff could never deal with work stress and rarely maintain attention/concentration or deal with the public or interact with supervisors because Plaintiff decompensates emotionally under stress and struggles with depression and panic attacks. (Tr. 1045). Plaintiff could occasionally carry out simple job instructions because anxiety, panic attacks, and depression interfere with functioning in this area. Plaintiff could rarely behave in an emotionally stable manner and relate predictably in social situations due to severe anxiety and depression. (Tr. 1046). Plaintiff's impairments would require her to exceed the number of usual workday breaks and interfere with the completion of a workday. (Tr. 1046). Plaintiff would be absent from work more than four days a month due to impairments or treatment. (Tr. 1047). Plaintiff was not a malingerer. (Tr. 1047). Plaintiff's impairments were reasonably consistent with symptoms and limitations opined. Plaintiff was not capable of employment because of mental illness. Plaintiff needed long term treatment and medication therapy. (Tr. 1047). Plaintiff could not manage

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benefits. (Tr. 1047).

On February 22, 2019, Plaintiff's friend Gina completed a letter. She reported witnessing multiple seizures per hour every time she visited her. One lasted over an hour and Plaintiff was completely incapacitated. A blank stare would take over as the seizure would set in. Stress triggered Plaintiff. Loud noises triggered seizures. Plaintiff seemed delayed in her thoughts, speech, and actions. (Tr. 558).

On March 7, 2019, Plaintiff was seen by Dr. Hossain. (Tr. 1032). Plaintiff continued with financial difficulties and was very anxious with 2-3 panic attacks the week before a scheduled hearing, since then she has 1-2 panic attacks per week, especially if leaving the house. Plaintiff gets easily overwhelmed even under minimal stress. (Tr. 1032). Upon exam, Plaintiff had normal behavior/activity, cooperative attitude, anxious and sad mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. Under thought content, Plaintiff continued to have fear of panic attacks. (Tr. 1033). Plaintiff was unable to afford individual therapy and gas money was even difficult.

On March 12, 2019, Dr. Moody, Ph.D. completed a clinical evaluation as a consultative examiner. (Tr. 1018). Dr. Hossain's medical records and statement were reviewed. (Tr. 1018). Medical history was discussed. Plaintiff struggled to recall what she ate last. Plaintiff's balance was poor and she ambulated with assistance. Plaintiff often does not complete chores due to fatigue and distraction. (Tr. 1019). Plaintiff reported feeling depressed a lot. Finances and family deaths were stressors. Plaintiff takes frequent daytime naps. Plaintiff no longer participated in church as she once did. Plaintiff feels anxious particularly in social situations. (Tr. 1019). Plaintiff goes to church once every 2-3 months. (Tr. 1019-20). Plaintiff reported psychiatric medications were helpful in symptom

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control, but counseling was not very helpful. (Tr. 1020). Plaintiff did not have any unusual mannerisms and sat still in her seat. (Tr. 1021-22). Her speech was very slow and clear, but she was delayed in response. Plaintiff had flat affect and depressed mood with very slow thought process. Plaintiff's concentration/attention was poor. (Tr. 1022). Plaintiff's mini-mental score was 23/30. Plaintiff could only recall 1 of 3 items on delay. Results of the assessment appeared valid. (Tr. 1022). Plaintiff "demonstrated adequate effort during testing but was delaying in response and appeared very mentally fatigued." Plaintiff reported she did not take medication beforehand. (Tr. 1023). Plaintiff had WAIS full scale IQ of 70. (Tr. 1023). On the CPT-II, Plaintiff produced a clinical confidence score of 50% indicating no decision regarding her concentration/attention. (Tr. 1024). Composite index on CTMT was severe impairment. (Tr. 1025). BDI depression score of 38 indicated severe depression. (Tr. 1025). BAI score was 38/63 and indicated severe anxiety. The "b test" is administered to measure suspect effort and the results of assessment appeared valid and indicated Plaintiff demonstrated adequate effort with no suspicious inconsistencies noted. (Tr. 1026). Plaintiff tried her best on all tests and there was no malingering. (Tr. 1026). Overall, her concentration and attention abilities were somewhat variable, but some impairment was noted. (Tr. 1026). Plaintiff's weakness in processing speed makes learning and comprehension difficult and time consuming tasks for Plaintiff, often leaving her feeling mentally drained and fatigue. (Tr. 1027). A diagnosis of major neurocognitive disorder could be suggested. (Tr. 1028). Diagnostic impression was depressive and anxiety disorder. (Tr. 1028). Dr. Moody also completed a form, opining marked limitations in complex decisions/instructions and moderate limitations in ability to carry out simple instructions due to extremely low processing speed and depression, which interferes with ability to carry out instructions and tasks. (Tr. 1029). Plaintiff had marked limitations in interactions with others due

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to depression, anxiety, extreme fatigue, and extremely low processing speed. Plaintiff had impaired capabilities with pace, persistence, and concentration based on WAIS-IV, BAI, and BDI-II tests. (Tr. 1030).

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

On April 25, 2018, Plaintiff appeared at a hearing before ALJ Thaddeus J. Hess. Plaintiff was represented by attorney Lisa Salisbury. Janette Clifford testified as a vocational expert. (Tr. 126). Plaintiff's attorney stated Plaintiff started treating with Dr. Hossain in March 2017 and received medication so she could not behave the way she did at the prior consultative exam. (Tr. 133). The prior consultation noted could not rule out possibility of intentional embellishment. (Tr. 134). Plaintiff's attorney argued that stress and excitement triggers seizures and Plaintiff was not on medications at the time of that exam and the findings were not inconsistent with disability. (Tr. 134). Plaintiff last worked in June 2016 the day she had a stroke. (Tr. 136). Plaintiff is afraid to drive. (Tr. 140). Plaintiff testified she cannot work because stress makes her have seizures. (Tr. 141). Plaintiff testified her last seizure was in January 2018. (Tr. 141). Plaintiff reported having a seizure just watching television. Plaintiff went to church the night prior to the hearing for an hour and a half. (Tr. 141-142). Plaintiff can concentrate at church most of the time but sometimes gets distracted. Shaking all the time made Plaintiff depressed. (Tr. 142). Plaintiff's medications stopped the shaking most of the time. (Tr. 143). Having to do something on time makes Plaintiff stressed. (Tr. 144). Plaintiff helps with chores. (Tr. 144). Plaintiff can shop with others. (Tr. 145). Plaintiff sometimes must leave the store because she gets stressed and starts shaking. (Tr. 145). Plaintiff's attorney stated

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mental health medications helped with seizures because they were pseudo-seizures, not neurological. (Tr. 146).

On February 28, 2019, Plaintiff appeared at a hearing before ALJ Thaddeus J. Hess. Plaintiff was represented by attorney Johnnie Fulton. Kim Williford was present as a vocational expert. (Tr. 108). There was a possible conflict involving a prior attorney, where an attorney's husband did the consultative exam. (Tr. 111). The hearing was on an Appeals Council remand. (Tr. 112). The new attorney had only been on the case a short time and a continuation was given. (Tr. 113).

On March 28, 2019, Plaintiff appeared at a hearing before ALJ Thaddeus J. Hess. Plaintiff was represented by attorney, Johnnie Fulton. Kim Williford testified as a vocational expert. (Tr. 39). The ALJ stated "this is like my third full review of this case. It's not clear to me that she had a stroke from the record." (Tr. 50). "I think it's pseudo seizure." (Tr. 50). The ALJ noted he called another CE in and Dr. Price diagnosed probable malingering. (Tr. 51-52). The ALJ acknowledged from the records of diagnosis he could not "tell if the person who is writing this note is questioning it or if they're just clinically observing." (Tr. 54). Plaintiff's attorney argued Dr. Hossain and Dr. Moody were consistent. (Tr. 56-57). The ALJ noted the CDI investigator did witness a pseudo seizure. (Tr. 60). Plaintiff testified her whole family went to her consultative exam with Dr. Moody. (Tr. 64). Plaintiff testified she did not understand everything she was supposed to do at the exam and Dr. Moody had to explain. (Tr. 65). Plaintiff testified medication from Dr. Hossain helped her seizures. (Tr. 66). Plaintiff testified she had side effects of sleeping a lot. (Tr. 66). Plaintiff had a seizure at church when her family was not with her. (Tr. 68). Plaintiff testified she was not faking anything. (Tr. 70). Plaintiff testified she does not always remember conversations. (Tr. 71-72).

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Plaintiff was trembling at the hearing and she testified this was normal for her when she was not at home. (Tr. 72). It sometimes happened at home too and she hurts in her chest and jaw. (Tr. 72). Plaintiff testified she was diagnosed with panic attacks. (Tr. 72). Plaintiff testified it happened every day at home. (Tr. 73). Before she was on medication, she experienced where she was like stepping outside of her body. (Tr. 76-77).

Plaintiff's husband testified that he has been married to Plaintiff for thirty years and Plaintiff is not left at home alone because she cannot be trusted due to safety issues. (Tr. 79). She falls and has issues with cooking and knives. (Tr. 80). Plaintiff loses her balance. (Tr. 80). Plaintiff had a seizure on the drive to the hearing. (Tr. 81). Plaintiff no longer had the "big" seizures since being on medication. (Tr. 82). Plaintiff sleeps for twelve hours, stays up a few hours, then goes to sleep again. (Tr. 83). Eight months or so prior to the hearing, Plaintiff had a "stroke" at church. (Tr. 86). As to depersonalization episodes, Plaintiff's husband testified she gets quiet, stares off blankly, then starts shaking. (Tr. 87-88). The episode in the car the day of the hearing lasted 15 minutes. (Tr. 88). "When her medication stays in her, she still has them three or four times of more a week." (Tr. 89). It was stressful to Plaintiff just to go onto her porch. Plaintiff takes in stress and trauma and does not know how to release it and over the years it built up. (Tr. 89-90). Plaintiff has episodes every day. (Tr. 90). Any noise also triggers Plaintiff. (Tr. 91). Plaintiff gives up on tasks after about 10-15 minutes. Plaintiff gets frustrated getting dressed and starts shaking. (Tr. 93). Plaintiff forgets to take her medication if he does not remind her. (Tr. 94). Plaintiff cannot handle stress of any kind; Plaintiff cannot handle a phone call, blanks out, gets upset, and throws the phone. (Tr. 95).

b. VE's Testimony

At the first hearing, the VE characterized Plaintiff's past work. (Tr. 150). The VE opined

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that an individual of Plaintiff's age, education, and prior work experience—who was limited to never climb ladder/rope/scaffold, never be exposed to hazards, can perform simple, routine tasks for two-hour blocks of time with normal rest breaks during an eight-hour work day, low stress work, meaning occasional decision making, occasional changes in the work setting, and occasional interaction with the public — could not perform Plaintiff's past work but other available jobs were laundry worker, packer, and sorter. (Tr. 151-152; 103). A different VE testified to jobs of office helper, hand packer, and marker as to a similar hypothetical. (Tr. 103). The DOT did not address public versus coworkers versus supervisors, or low stress jobs and such testimony was based on the VE's experience. (Tr. 152). No jobs were available if an individual was off task 20% of the time or absent four days a month. (Tr. 153-154). Special accommodations would be required if a supervisor had to visit every 30 minutes. (Tr. 105-106).

c. The ALJ's Decision

In the decision of April 17, 2019, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.

2. The claimant has not engaged in substantial gainful activity since June 22, 2016, the alleged onset date (20 CFR 404.1571 et seq .).

3. The claimant has the following severe impairments: history of stroke, migraine headaches, mild obstructive sleep apnea, pseudoseizures and major depressive disorder (20 CFR 404.1520(c)).

4. The claimant 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 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, I find that the claimant has the residual

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functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she can never climb ladders, ropes or scaffolds. She should have no exposure to workplace hazards such as unprotected heights and moving machinery. She can perform simple, routine tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday. She can perform low stress work defined as occasional decision-making and occasional changes in the work setting. She can have only occasional interaction with the general public.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on May 28, 1970 and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from June 22, 2016, through the date of this decision (20 CFR 404.1520(g)).

Plaintiff argues the ALJ failed to properly weigh opinion evidence by Dr. Hossain. Plaintiff argues the ALJ failed to properly consider Listing 12.07. Defendant argues that the decision should be affirmed as the ALJ's findings are supported by substantial evidence.

A. LEGAL FRAMEWORK

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42

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U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: 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 at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See , e . g ., Heckler v . Campbell , 461 U.S. 458, 460 (1983) (discussing considerations and noting the "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability

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analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v . Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v . Harris , 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v . Yuckert , 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [ ] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal

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standard in evaluating the claimant's case. See id .; Richardson v . Perales , 402 U.S. 389, 390 (1971); Walls , 296 F.3d at 290 ( citing Hays v . Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v . Finch , 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v . Bowen , 849 F.2d 846, 848 (4th Cir.1988) ( citing Smith v . Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson , 402 U.S. at 390, 401; Johnson v . Barnhart , 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek , 438 F.2d at 1157-58; see also Thomas v . Celebrezze , 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v . Richardson , 483 F.2d 773, 775 (4th Cir. 1972).

B. ANALYSIS

1. Dr. Hossain's Opinions

Plaintiff argues the ALJ failed to properly weigh and analyze opinion evidence by Dr. Hossain.

The Social Security Administration's regulations provide that "[r]egardless of its source, we will evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(c). Generally, more weight is given to the opinions of examining physicians than nonexamining physicians. More weight is given to the opinions of treating physicians since they are more likely to be able to provide a detailed, longitudinal picture of a claimant's medical impairment. See 20 C.F.R. § 404.1527(c).

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The medical opinion of a treating physician is entitled to controlling weight, i.e., it must be adopted by the ALJ, if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See 20 C.F.R. § 404.1527(c)(2), SSR 96-2p, and Mastro v . Apfel , 270 F.3d 171, 178 (4th Cir. 2001). Thus, "[b]y negative implication, if a physician's opinion is not supported by clinical evidence, it should be accorded significantly less weight." Craig v . Chater , 76 F.3d 585,590 (4th Cir. 1996). Under such circumstances, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro , 270 F.3d at 178 (citing Hunter v . Sullivan , 993 F.2d 31, 35 (4th Cir. 1992)).

In determining what weight to give the opinions of medical sources, the ALJ applies the factors in 20 C.F.R. § 404.1527(c)(1)-(6), which are: whether the source examined the claimant; whether the source has a treatment relationship with the claimant and, if so, the length of the relationship and the frequency of examination; the nature and extent of the treatment relationship; the supportability and consistency of the source's opinion with respect to all of the evidence of record; whether the source is a specialist; and, other relevant factors. See SSR 96-2p; Hines v . Barnhart , 453 Fd 559,563 (4th Cir. 2006).

On February 19, 2019, Dr. Hossain completed a form. (Tr. 1047). Plaintiff could never deal with work stress and rarely maintain attention/concentration or deal with the public or interact with supervisors because Plaintiff decompensates emotionally under stress and struggles with depression and panic attacks. (Tr. 1045). Plaintiff could occasionally carry out simple job instructions because anxiety, panic attacks, and depression interfere with functioning in this area. Plaintiff could rarely behave in an emotionally stable manner and relate predictably in social situations due to severe

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anxiety and depression. (Tr. 1046). Plaintiff's impairments would require her to exceed the number of usual workday breaks and interfere with completion of workday. (Tr. 1046). Plaintiff would be absent from work more than four days a month due to impairments or treatment. (Tr. 1047). Plaintiff was not a malingerer. (Tr. 1047). Plaintiff's impairments were reasonably consistent with symptoms and limitations opined. Plaintiff was not capable of employment because of mental illness. Plaintiff needed long term treatment and medication therapy. (Tr. 1047). Plaintiff could not manage benefits. (Tr. 1047).

On April 3, 2018, Dr. Hossain completed a questionnaire. (Tr. 873). Plaintiff was seen every two months from March 2017 and Plaintiff could not attend more frequent visits. Diagnosis were panic disorder without agoraphobia, major depressive disorder recurrent, moderate, depersonalization-derealization disorder, and insomnia. Plaintiff had pseudo seizures per neurology and questions about such were directed to neurology. (Tr. 871). Plaintiff needed to take unscheduled breaks 1-2 times a week for three to four hours. (Tr. 873). Plaintiff was incapable of even "low stress" jobs due to severe anxiety, chronic depression, and periods of depersonalization/derealization. (Tr. 873). Plaintiff had depression, poor self-esteem, short attention span, and panic disorder. Plaintiff would be absent from work as a result of impairments or treatment more than four days per month. Plaintiff decompensated emotionally even under minimal stress. (Tr. 873).

The ALJ gave little weight to Dr. Hossain's opinions:

As for the claimant's mental impairments, Dr. Hossain treated the claimant for panic disorder without agoraphobia, depersonalization-derealization disorder, major depressive disorder and insomnia. He treated her on an outpatient basis through follow up visits every two months. His treatment generally consisted of the administration and management of medications. His records show the claimant's depression and anxiety waxed and waned. She also experienced some panic attacks during treatment. However, his records also indicate the claimant and her husband

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were facing extreme financial difficulties during treatment. Dr. Hossain was also aware of the fact that the claimant and her husband had both filed for disability and that both had been denied. In fact, Ms. Thurston asked him to draft a letter endorsing her inability to work. He subsequent to the request issued a Physician Questionnaire in March 2018 wherein he essentially concludes she is disabled based on severe anxiety and chronic depression, as well as periods of depersonalization/derealization. He opines that she has no physical limitations from her mental illnesses, but she decompensates emotionally even under minimal stress (supra).

Dr. Hossain also opines the claimant would miss work more than four days per month. I am not sure what he bases such opinion on because he only saw the claimant once every two months. There is no evidence that she presented to any other medical or mental health providers so frequently as to provide a basis of support for such an opinion. Also, there is no evidence of record that she experienced periods of decompensation at least once a week so as to support being absent from work more than four times a month. Moreover, there is no evidence the claimant experienced decompensation requiring hospitalization for psychiatric treatment. While he alleges she decompensates emotionally even under minimal stress, she certainly had to have experienced more than minimal stress while under his care, given the fact she and her husband were experiencing extreme financial difficulties throughout the entire time she was being treated by him. There is no evidence of record the claimant ever experienced decompensation necessitating hospitalization or intervening care between follow-up visits.
...
Dr. Hossain is certainly a treating physician and established a treating relationship with the claimant. However, by his own admission, he only examined the claimant every two months on an outpatient basis. He also is certainly able to render an opinion as to the claimant's mental limitations. However, as discussed above, his medical records do not support his opinions in 12F and 21F. Dr. Hossain's records are replete with references to the financial straits of the claimant and her husband during the time period in which he treated the claimant. Thus, it must be at least considered the claimant was motivated by her desire to have him assist her in her attempt to qualify for disability benefits. Also, in assessing Dr. Hossain's opinions, it must be considered that his opinions are partly based on the claimant's subjective complaints. Thus, consideration must also be given to the fact that there is some evidence of possible embellishment and malingering on the part of the claimant. Consequently, little weight is given to his opinion.

(Tr. 25-26, 28).

Supportability and Consistency Factor

In regard to the supportability and consistency factor of 20 C.F.R. § 404.1527(c), the ALJ

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failed to address or resolve, in the particular weighing of Dr. Hossain's opinions, opinions that supported and were also consistent with Dr. Hossain's opinions. Dr. Hossain's, Dr. Mullen's, and Dr. Moody's opinions, testing, and exams are somewhat consistent and supportive of each other, as summarized above, and it is not the court's place to perform such analysis in the first instance. (Tr. 885-890, 1018-1030).

Contemporaneous Records

The ALJ found Dr. Hossain's medical records do not support his opinions. (Tr. 28). It is unclear how substantial evidence supports this finding without a discussion of a plethora of Dr. Hossain's objective, abnormal, contemporaneous mental exams, which included findings of slow behavior/activity, cooperative and guarded attitude, depressed and anxious mood, dysthymic, anxious, and mood congruent affect, and restricted range of affect. (Tr. 865, 862, 858, 853, 849, 844, 841, 837, 833, 828, 824, 893, 905, 911, 1038, 1033). Moreover, other providers noted some abnormal exams. (Tr. 925, 886, 1022). The opinion of a treating physician may be disregarded only if there is persuasive contradictory evidence. Mitchell v . Schweiker , 699 F.2d 185 (4th Cir.1983). "Objective medical facts and the opinions and diagnoses of the treating and examining doctors constitute a major part of the proof to be considered in a disability case and may not be discounted by the ALJ." Id . at 187. A treating physician is a physician who has observed the plaintiff's condition over a prolonged period of time. Id . The opinion of a treating physician may be disregarded where it is inconsistent with clearly established, contemporaneous medical records. See 20 C.F.R. § 404.1527(d)(4). However, Dr. Hossain's contemporaneous notes are not clearly inconsistent with his limitation opinions.

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Malingering/Embellishment

In finding that Dr. Hossain's opinions were partly based on subjective complaints and thus it was to be considered that there was some evidence of possible embellishment/malingering, the ALJ did not discuss this aspect further in relation to Dr. Hossain's opinion. (Tr. 28). The ALJ did not discuss supporting and conflicting factors for Dr. Hossain's opinion that Plaintiff was not a malingerer, nor did the ALJ discuss that Dr. Hossain had opined such. (Tr. 1047). In May 2018, one time examiner Dr. Price only diagnosed probable malingering. (Tr. 879). Dr. Mullen, also a one time examiner, reviewed Dr. Price's evaluation and stated Dr. Price did not provide justification for his diagnosis and his conclusions were framed in a speculative nature. (Tr. 887). Dr. Mullen stated: "All of that is just what he has chosen to call Mrs. Thurston's presentation to his office for mental status examination. He gave her no psychological testing and he believes that most of her complaints are merely conjured up by the patient and there exists no involuntary aspect to her case. I think he is wrong about this and his report has a misleading, terribly misleading, diagnosis and conclusion." (Tr. 887). In March 2019, a different one time examiner, Dr. Moody performed numerous objective tests on Plaintiff including the "b test," administered to measure suspect effort, and the results of the assessment appeared valid and indicated Plaintiff was demonstrated adequate effort with no suspicious inconsistencies noted. (Tr. 1026). Plaintiff tried her best on all tests and Dr. Moody opined there was no malingering. (Tr. 1026). It is not the court's place to resolve the 20 C.F.R. § 404.1527(c) factors when there are multiple opinions either supporting or conflicting with Dr. Hossain, a treating specialist's opinion regarding malingering, that were not discussed in the context of weight given to Dr. Hossain's opinion. It was the ALJ's duty to do so, which is unfulfilled here. An ALJ is entitled to discount an opinion where it is based mainly on subjective complaints with

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little clinical observations, but that is not the scenario with Dr. Hossain's exams. See Court v . Saul , No. 4:18-CV-201-RJ, 2019 WL 4415145, at *6 (E.D.N.C. Sept. 16, 2019); Mastro v . Apfel , 270 F.3d 171 (4th Cir. 2001); Strawderman v . Astrue , No. 5:10-CV-00007, 2010 WL 4286153, at *5 (W.D. Va. Oct. 28, 2010)( "Psychiatric evaluations cannot be based on x-rays or laboratory studies. Instead, a mental health clinician must be able to observe the claimant, consider her complaints, and assess mental status.").There are objective exams at each of Dr. Hossain's visits as discussed above and a psychiatrist necessarily must make notations of subjective complaints when dealing with mental status.

Speculation of Motivation of Opinion

Twice, the ALJ states that because Dr. Hossain's records are replete with references to financial straits it must be considered that Dr. Hossain's opinion is at least based on motivation for Plaintiff to garner disability benefits. (Tr. 25, 28). The ALJ makes note that Plaintiff asked for a letter for her mortgage and he gave it to her. Such letter is not in the record. (Tr. 25). Contemporaneous treatment notes show Plaintiff reported financial difficulties in the context of a stressor and Dr. Hossain noted such. Dr. Hossain also noted such in the context of Plaintiff unable to make more frequent appointments or to do individual therapy because she could not afford gas money. (Tr. 848, 844, 840, 836, 832, 828, 824, 892, 898, 1032). "Patient unable to come to more frequent appointments because of transportation and financial difficulties." (Tr. 824). "Patient would benefit from individual therapy but does not have the transportation to get to more appointments." (Tr. 893). Plaintiff was unable to afford individual therapy and gas money to go was even difficult. (Tr. 1033). Plaintiff reported to Dr. Moody in March 2019 that finances were a stressor. (Tr. 1019). Plaintiff reported stressor of threat of foreclosure to Dr. Smith in August 2016.

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(Tr. 750). The Commissioner cannot assume that a doctor is lying in order to help his patient collect benefits. See Putnam v . Saul , 2:18-cv-3524-DCN-MGB, 2020 WL 562960, *7 (Feb. 5, 2020)(citing Lester v . Chater , 81 F.3d 821, 832 (9th Cir 1995)). Dr. Hossain's alleged motivation appears to be speculative in nature by the ALJ.

Absences/Decompensation opinion

The ALJ found there was "no evidence of record that she experienced periods of decompensation at least once a week so as to support being absent from work more than four times a month." The ALJ relied on the lack of hospitalization for psychiatric treatment. The ALJ notes that Plaintiff was under more than minimal stress at times during Dr. Hossain's care but Plaintiff never needed hospitalization or intervening care. While Listing level decompensation may require such hospitalization or emergent care, limiting effects for RFC purposes would not. See 20 C.F.R. Pt. 404, Subpt. P, App.1, Listings under 12.00 et seq . The ALJ does not address or resolve the numerous contemporaneous treatment notes of needing a third dose of clonazepam twice a week and sedation as a side effect of such, of 1-2 panic attacks a week, in heightened stress 2-3 panic attacks a week, needing half a klonopin to be around others in public, a derealization episode that lasted a couple of hours, or of other providers' notations of active pseudo seizure episodes witnessed that provide support for Dr. Hossain's absences and other limitations opined regarding stress. (Tr. 791, 925, 865, 861, 852, 836, 892, 898, 904, 1032). In March 2018, in contemporaneous notes, after discussing two of Plaintiff's last panic attacks, Dr. Hossain noted: "Patient tends to get easily overwhelmed even under minimal stress. She cannot focus or concentrate if she becomes 'too emotional.'" Then, Plaintiff's exam was abnormal in the mood, affect, and range of affect categories. (Tr. 824). It is not apparent that substantial evidence supports the ALJ's finding regarding Dr. Hossain's opinion about

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absences.

"An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis v . Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) ( quoting Denton v . Astrue , 596 F.3d 419, 425 (7th Cir. 2010)). The ALJ is obligated to consider all evidence, not just that which is helpful to his decision. Gordon v . Schweiker , 725 F.2d 231, 235-36 (4th Cir. 1984); Murphy v . Bowen , 810 F.2d 433, 437 (4th Cir. 1987). Resolving conflicting evidence with reasonable explanation is an exercise that falls within the ALJ's responsibility and is outside the court's scope of review. See Mascio v . Colvin , 780 F.3d 632, 637-40 (4th Cir. 2015). The ALJ did not properly evaluate the 20 C.F.R. § 404.1527(c) factors of supportability and consistency in relation to the evidence in the record. It is not the court's "role to speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record." Fox v . Colvin , 632 Fed. Appx. 750, 755 (4th Cir. Dec. 17, 2015). "The ALJ's failure to 'build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error." Lewis v . Berryhill,858 F.3d 858, 868 (4th Cir. 2017)(internal citations omitted). Based on the foregoing, the court can not find that the ALJ's decision regarding the evaluation of Dr. Hossain's opinion is supported by substantial evidence and remand is appropriate. On remand, the ALJ should also address Plaintiff's arguments regarding Listing 12.07.

In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. Accordingly, pursuant to the power of the Court to enter a judgment affirming,

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modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.

s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge

December 15, 2020
Florence, South Carolina