Opinion
Civil Action No: 8:19-cv-03028-RMG-JDA
10-23-2020
Thomas John Birdsall, Plaintiff, v. Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In March 2015, Plaintiff filed an application for DIB alleging an onset of disability date of February 29, 2012. [R. 276-79.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 189, 194-97.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and on May 9, 2018, ALJ Danette Mincey conducted a de novo hearing on Plaintiff's claim. [R. 64-115.]
The ALJ issued a decision on August 21, 2018, finding that from February 29, 2012 to April 5, 2015, Plaintiff was not disabled under the Social Security Act (the "Act") and that from April 6, 2015, to February 22, 2018, Plaintiff was disabled under the Act but that Plaintiff's disability ended on February 23, 2018. [R. 39-63.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity since February 29, 2012, the alleged onset date. [R. 46, Findings 1 & 2.] At Step 2, the ALJ found that, since the alleged onset date, Plaintiff had had the severe impairments of degenerative disc disease, osteoarthritis of the right knee and left hip, and post effects of left knee replacement; beginning on April 6, 2015, Plaintiff had the additional severe impairment of post effects of cervical laminectomy and fusion; and beginning on February 23, 2018, Plaintiff had the additional severe impairment of atrial fibrillation. [R. 47, Finding 3; R. 51, Finding 6; R. 55, Finding 15.] The ALJ also found Plaintiff had non-severe impairments of hypertension and sleep apnea. [R 47.] At Step 3, the ALJ found that, since the alleged onset date, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 48, Finding 4; R. 51, Finding 7; R. 55, Finding 16.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b) before April 6, 2015. [R. 49, Finding 5.] The ALJ found that Plaintiff had the following RFC from April 6, 2015 to February 22, 2018:
to perform sedentary work as defined in 20 CFR 404.1567(a), but [he] could lift and carry 20 pounds occasionally and ten pounds frequently, stand and/or walk for four hours in an eight-hour workday, and sit for six hours in an eight-hour workday. [He] could occasionally climb ramps, stairs, ladders, ropes, or scaffolds, frequently balance, occasionally stoop, occasionally kneel, occasionally crouch, and never crawl. [He] could frequently engage in overhead and lateral reaching, and had to avoid concentrated exposure to hazards, such as heights and machinery.[R. 52, Finding 8.] The ALJ found that medical improvement occurred as of February 23, 2018, increasing Plaintiff's RFC. [R. 55-56, Finding 17 & 18.] Thus, the ALJ found that, beginning on or about February 23, 2018, Plaintiff had the following RFC:
to perform light work as defined in 20 CFR 404.1567(b) except []he can occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds. [He] can occasionally kneel and crouch, but never crawl, can engage in occasional overhead reaching with the upper extremities, and should avoid concentrated exposure to workplace hazards. [He] would need a sit/stand option and can stand for a sustained period of 30 minutes before needing to change positions to sitting for no more than five minutes before resuming standing, but can stay on task and can meet production and performance standards. [He] would occasionally be off task for no more than five to seven percent of the workday in additional to regularly scheduled breaks and/or would occasionally be absent no more than one to two days every two to three months due to his limitations.[R. 56, Finding 19.] Based on these RFC findings, the ALJ determined at Step 4 that Plaintiff was able to perform his past relevant work as an executive chef before April 6, 2015, and beginning again on or about February 23, 2018. [R. 54, Finding 9; R. 57, Finding 20.] However, for the period from April 6, 2015, through February 22, 2018, the ALJ determined that there were no jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 54, Finding 13.] Thus, the ALJ found that Plaintiff had been under a disability as defined in the Act from April 6, 2015, through February 22, 2018, but that his disability ended on February 23, 2018, and he had not become disabled again since that date. [R. 55, Finding 14; R. 58, Finding 21.]
Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on October 25, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and should be reversed and remanded. [Doc. 15.] Specifically, Plaintiff argues that the ALJ failed to explain the RFC findings as required by SSR 96-8p. [Id. at 18-28.] Further, Plaintiff contends the ALJ failed to properly evaluate his subjective symptomology in accordance with SSR 16-3p. [Id. at 28-31.]
The Commissioner, on the other hand, contends the ALJ's decision should be affirmed because it is supported by substantial evidence. [Doc. 17.] Specifically, the Commissioner contends the ALJ logically explained Plaintiff's RFC assessment. [Id. at 8-11.] Further, the Commissioner contends Plaintiff did not testify consistently and that the ALJ reasonably found Plaintiff's statements were inconsistent with the evidence before April 6, 2015, and after February 22, 2018. [Id. at 11-14.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
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 U.S.C. § 423(a). "Disability" is defined 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 a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches Step 5, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed In the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC Analysis
Plaintiff challenges the ALJ's RFC analysis for the period before and after his closed period of disability. [Doc. 15 at 20-28.] Social Security Ruling 96-8p provides the process for determining RFC. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). The ruling states that the "'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Id. (quoting SSR 96-8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996)). "Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work." Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. 2016) (internal quotation marks omitted). SSR 96-8p also provides that the RFC "'assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).'" Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,478). Additionally, the Fourth Circuit has held that "[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, including a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Monroe, 826 F.3d at 189 (alteration in original and internal quotation marks omitted). To create such a record, the ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Rehoric v. Berryhill, No. 1:17-cv-02634-MGL-SVH, 2018 WL 7021611, at *12 (D.S.C. Dec. 28, 2018) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 188690 (D.S.C. Jan. 14, 2019). The Fourth Circuit has described the required discussion as "build[ing] an accurate and logical bridge from the evidence to [the ALJ's] conclusion." Monroe, 826 F.3d at 189 (internal quotation marks omitted).
The ALJ's RFC Determination for the Period Before April 6 , 2015
Upon review of Plaintiff's testimony and medical history, the ALJ explained as follows:
As for the claimant's statements about the intensity, persistence, and limiting effects of his or her symptoms, they are inconsistent because the evidence of record prior to April 6, 2015, reflects that the overall level of the claimant's functioning improved with treatment.
The evidence of record reflects that the claimant started experiencing pain in his knees, hips, and lower back following a slip-and-fall injury at work on February 29, 2012. As early as March 10, 2012, MRI results of the claimant's left knee revealed moderate tricompartmental degenerative change and soft tissue swelling (Exhibit 6F/114). On examination on March 29, 2012, physical examination findings were significant for moderate tenderness to palpation in the spine, muscle spasms, abnormal reflexes at the knees, decreased sensation to light touch in the left lower extremity compared to the right, significant crepitus in the knees, and positive straight-leg raising in the right lower extremity (Exhibit 8F/12-14). Subsequent MRI results of the lumbar spine revealed advanced spondyloarthropathy, multilevel spinal canal
stenosis, and progressive mild-to-advanced neural foraminal narrowing (Exhibit 4F/27).[R. 49-50.] The ALJ explained the opinion evidence as follows:
After failing conservative treatment, including physical therapy, lumbar epidural steroid injections, and pain medication, the claimant had lumbar spine surgery in January 2013, and a left total knee replacement in June 2014 (Exhibits 4F/24, 5F/2-4 and 10-13, 6F/78). Following his back surgery, the claimant reported that he was doing better overall, and that his medications were working well to control his residual pain (Exhibits 6F/52 and 11F/10). Following his knee replacement surgery in June 2014, the claimant initially required the use of [a] rolling walker to assist with ambulation, by August 11, 2014, the claimant was able to complete physical therapy for meeting all treatment goals. Specifically, the claimant required minimal assistance to complete his activities of daily living, his left lower extremity pain had decreased to three to four out of ten, and although his left knee clicked when he exercised it, there was no pain (Exhibit 6F/31-32 and 46-47).
On follow up examination on August 18, 2014, three months after the claimant's left knee surgery, his left knee range of motion ranged from 0 to 120 degrees, he had good stability and intact sensation, and x-ray imaging showed good alignment of the prosthesis without complications (Exhibit 9F/2).
. . . Findings on examination prior to April 6, 2015, revealed that the claimant had good recovery following his surgical procedures, that he was able to ambulate without the use of an assistive device, and that he reported improvement in his pain following his left knee and lower back pain, respectively (Exhibits 6F/52, 8F/12-14, and 9F/2).
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not fully supported prior to April 6, 2015, for the reasons explained in this decision.
[T]he State agency medical consultants found that prior to April 6,2015, the claimant could perform work at the light level of exertion (Exhibits 1A/11-15, 3A/11-15, 4A/1-15, and 6A/12-16). As State agency medical consultants, they possess program knowledge regarding the rules and regulations governing the Social Security Administration's disability program. Further, they had the opportunity to review the entirety of the evidence, as it existed before them. As such, their findings are generally consistent with the objective evidence of record. Specifically, the evidence demonstrates that although the claimant had a left total knee replacement and surgery on his lumbar spine, his symptoms generally improved following these procedures such that he ambulated effectively and had good stability, sensation, and range of motion (Exhibit 6F/46-47, 9F/2, and 11F/8). In light of these considerations, the undersigned gives great weight to the opinions of the State agency medical consultants for the period through April 6, 2015.[R. 50-51.]
On May 8, 2013, William Mills, M.D. opined that the claimant could return to light duty work with lifting no more than 10 to 15 pounds (Exhibit 6F/55). The undersigned gives some weight to Dr. Mills's opinion because he had the opportunity to examine the claimant, and his conclusion is somewhat consistent with physical examination and diagnostic findings through May 2013, but subsequent evidence demonstrates that the claimant was capable of a slightly greater level of functioning in the period prior to April 6, 2015 (see, for example, Exhibits 9F/2 and 11F/5).
On August 18, 2014, Todd Tupis, M.D. indicated that the claimant could return to full duty work (Exhibit 9F/2). Although Dr. Tupis had the opportunity to examine the claimant on a number of occasions, the issue of whether an individual is disabled is one that is reserved to the Commissioner. Further, Dr. Tu[]pis treated the claimant primarily for his left knee, and it does not appear that he considered the effects of the claimant's other musculoskeletal impairments. In light of these considerations, the undersigned gives little weight to Dr. Tupis's August 2014 opinion.
The ALJ's RFC Determination for the Period After February 22 , 2018
With respect to the period after February 22, 2018, the ALJ explained as follows:
After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
As for the claimant's statements about the intensity, persistence, and limiting effects of his or her symptoms, they are inconsistent because treatment notes reflect that starting in February 2018, the claimant's clinical presentation improved with a corresponding improvement in his overall level of functioning. For example, when the claimant presented for examination on February 22, 2018, the claimant reported that his symptoms of radiating cervical spine pain and right arm numbness and weakness had significantly improved following his cervical spine surgery. On examination, the claimant ambulated without an assistive device, but he had tenderness along the paraspinal muscles of the cervical and lumbar spine, as well as 4/5 strength in the right lower extremity. The claimant also had normal sensation and negative straight-leg raising testing. Although the claimant reported some ongoing leg numbness, he otherwise indicated that his right arm strength had improved such that he believed he could play guitar again.
On April 4, 2018, the claimant presented for treatment with Jerry Watson, M.D. with active atrial fibrillation. Dr. Watson attempted cardioversion therapy to return the claimant to normal sinus rhythm, but was unsuccessful. The claimant presented for a second attempt at cardioversion treatment on April 14, 2018, with better results. On follow up with Dr. Watson on April 23, 2018, Dr. Watson noted that the claimant remained in normal sinus rhythm following his second cardioversion treatment. On examination, the claimant's blood pressure measured 146/98mmHg, he had regular heart rate and rhythm, and he ambulated with a steady gait. Given the
claimant's presentation, Dr. Watson indicated that the claimant was doing well following his back surgery, and that he was adequately controlling his hypertension, sleep apnea, and atrial fibrillation with current treatment modalities (Exhibit 22F/1-3).[R. 56- 57.]
. . . [O]n follow up with Dr. Alci on February 22, 2018, the claimant indicated that he had improved functioning in his right arm (Exhibit 21F/4). Further, on examination with Dr. Watson on April 23, 2018, the claimant ambulated with a steady gait, he remained in normal sinus rhythm following his cardioversion treatment, his blood pressure was well-controlled on medication, he was tolerating CPAP treatment well, and he reported doing well following his back surgery (Exhibit 22F/1-3). In light of these considerations, the undersigned is unable to find the claimant's allegations to be entirely consistent with the objective evidence of record.
In sum, the above residual functional capacity assessment is supported by the objective evidence of record, the statements of the claimant, to the extent they are consistent with the objective findings, and the opinion evidence, to the degrees noted above.
Discussion
As noted, for the period before April 6, 2015, the ALJ found Plaintiff was capable of performing the full range of light work. [R. 49, Finding 5.] Plaintiff contends that at least between February 2012 and August 2014, he was incapable of performing light work. [Doc. 15 at 20-22.] In February 2012, Plaintiff fell at work, and he was subsequently diagnosed with severe lumbar degenerative disc disease and spondylosis, contusion of the knees, and early arthritic changes of the hips. [R. 541-44.] In late March 2012, Plaintiff was referred to an orthopedic surgeon and instructed to remain out of work. [Id.] Plaintiff was seen by a spine specialist, William L. Mills, M.D., in May, June, September, October, and December 2012, and instructed to remain out of work at each visit. [R. 591-94, 597-99, 609.] Plaintiff underwent a lateral interbody fusion at L2-3, L3-4, and L4-5 in January 2013, and it was not until March 2013, over a year after his injury, that Dr. Mills allowed Plaintiff to return to work with a lifting limit of 10 to 15 pounds. [R. 610-16, 622.] While in the hospital for his lumbar spine surgery, Plaintiff had fallen on his left knee and in March 2014, Todd Tupis, M.D., instructed Plaintiff not to work due to his knee pain. [R. 627-28.] Plaintiff underwent a total knee replacement on June 10, 2014 [R. 421-23], and Dr. Tupis released him to work on August 18, 2014 [R. 648].
"Light work involves lifting no more than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds" and "requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b). "To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities." Id.
The ALJ noted that on May 8, 2013, after Plaintiff's spine surgery but before his knee surgery, "William Mills, M.D. opined that [Plaintiff] could return to light duty work with lifting no more than 10 to 15 pounds" but that "subsequent evidence demonstrates that [Plaintiff] was capable of a slightly greater level of functioning in the period prior to April 6, 2015." [R. 51.] In finding Plaintiff capable of a greater level of functioning during this period, the ALJ relied on (a) Dr. Tupis's notes from August 18, 2014, indicating that Plaintiff showed good stability in his left knee and had reached maximum medical improvement with a 25% impairment rating, and (b) a chart showing Plaintiff's sinus rhythm. [R. 51 (citing R. 650, 770).] However, the ALJ cited to no medical evidence indicating that Plaintiff could lift more than Dr. Mills opined. Additionally, and as argued by Plaintiff, the ALJ gave great weight to the opinions of the State agency medical consultants [R. 50-51]; however, she did not incorporate into the RFC these consultants' opinions that Plaintiff was limited to standing and/or walking for a total of four hours per day; was limited in reaching in front, laterally, and overhead; and needed to avoid hazards [R. 126-27, 144-45, 161-62, 179-81.] Nor did she explain why she was excluding these limitations from the RFC. Thus at least with respect to the time period from February 2012 through August 2014, the Court cannot find that the ALJ's RFC determination is supported by substantial evidence.
Plaintiff underwent another back surgery in early January 2018, and the ALJ found that, after February 23, 2018, Plaintiff's RFC increased from sedentary to light work with additional limitations. [R. 56, Finding 19.] However, it is unclear from the decision what information the ALJ relied on to find that Plaintiff's ability to stand/walk had improved in a manner that would increase his RFC. As argued by Plaintiff, the treatment notes the ALJ relied on to increase Plaintiff's RFC reflect the same examination results as treatment notes from the time period when the ALJ found Plaintiff was limited to sedentary work and, thus, disabled. [Compare R. 811 ("ambulating with no assistive devices," "Broad based gait pattern, spastic gait," "tenderness of the spinous process and the sacrum," "tenderness of the paraspinal region," "pain with motion," "Knee Reflex Left: diminished") with 818 ("ambulating with no assistive devices," "Broad based gait pattern, spastic gait," "tenderness of the spinous process and the sacrum," "tenderness of the paraspinal region," "pain with motion," "Knee Reflex Left: diminished") and R. 822 (same).] That treatment notes on February 22, 2018, indicate that Plaintiff was "happy with the early results," that his symptoms "have improved significantly," and that he believed he could play the guitar again [R. 810, 812] is not enough to build a logical bridge to the conclusion that such improvement increased Plaintiff's RFC from sedentary to light with additional restrictions. Accordingly, the Court is unable to find that the ALJ's RFC determination is supported by substantial evidence.
Remaining Allegation of Error
Because the Court finds that the ALJ's RFC analysis is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegation. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegation of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and that the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge October 23, 2020
Greenville, South Carolina