Opinion
C/A 2:20-cv-02485-TMC-MGB
06-21-2021
SAUNDRA W. BRANSON, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Saundra W. Branson (“Plaintiff”), brought this action 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 Administration regarding her claim for Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff initially filed an application for SSI on January 30, 2017, alleging a disability onset date of August 25, 2014. (R. at 15.) Plaintiff claimed disability due to, inter alia, memory loss, limited use of right arm and shoulder, heart condition, headaches, and high blood pressure. (R. at 74-75.) Plaintiff has a high school education. (R. at 27.) Her application was denied initially and on reconsideration. (R. at 15.) After a hearing before an Administrative Law Judge (“ALJ”) on March 27, 2019, the ALJ issued a decision on August 20, 2019, in which the ALJ found that Plaintiff was not disabled. (R. at 15-28.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since January 30, 2017, the application date (416.971 et seq.).
(2) The claimant has the following severe impairments: hypertension; muscle, fascia, and tendon injury status-post stab wound to the right upper extremity; and mild lumbar degenerative disc disease. (20 CFR 416.920(c)).
(3) 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 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except standing and walking four hours over an eight-hour day and sitting six hours over an eight-hour workday. She can occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, and occasionally balance, stoop, kneel, crouch, and crawl. The claimant can occasionally reach overhead with right upper extremity, frequently reach to the front and laterally with the right upper extremity, and frequently handle with the right upper extremity. She can have occasional exposure to extreme heat and hazards, including unprotected heights.
(5) An expedited process regarding the claimant's past relevant work is warranted (20 CFR 416.920(h)).
(6) The claimant was born on September 30, 1968 and was 48 years old, which is defined as a younger individual age 45-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
(8) Transferability of job skills is not an issue because I expedited the vocational assessment (20 CFR 416.920(h) and 416.968).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, from January 30, 2017, the date the application was filed (20 CFR 416.920(g)).(R. at 15-28.)
Here, the ALJ found that “it is unclear what, if any, of [Plaintiff's] past work was done at the substantial gainful activity level.” (R. at 27.)
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). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ's decision is not supported by substantial evidence. More specifically, Plaintiff alleges that the ALJ: (1) improperly assessed Plaintiff's subjective statements; (2) improperly evaluated the medical opinion evidence; and (3) failed to adequately explain her findings regarding Plaintiff's residual functional capacity (“RFC”). (Dkt. No. 16.)
As discussed further below, the ALJ failed to properly consider the evidence pertaining to Plaintiff's mental impairments when assessing Plaintiff's subjective statements. Accordingly, the undersigned cannot find that the ALJ's decision is supported by substantial evidence. The Commissioner's decision should therefore be reversed and remanded.
A. ALJ Decision and Hearing
The ALJ's decision considers whether Plaintiff was disabled from January 30, 2017, the date Plaintiff filed her application for SSI, through August 20, 2019, the date the ALJ issued her decision. At the March 27, 2019 ALJ hearing, the ALJ noted the limited record and found additional consultative examinations would be helpful for her review. Specifically, the ALJ noted that Plaintiff alleged certain physical impairments stemming from a motorcycle accident in 2015 and a recent car accident and she sent Plaintiff “for another physical examination asking . . . to measure specific strength . . . and to give me a medical opinion as to what she can do.” (R. at 46, 70.) The ALJ stated she could not “find an impairment based simply on [Plaintiff's] statements.” (R. at 70.) Similarly, the ALJ found “we should do a psych [consultative examination] and have memory testing done, because [Plaintiff] testified to significant memory loss, . . . [but] I don't have any mental health diagnosis.” (R. at 71.)
A claimant is not eligible for SSI until the date on which she files an application for benefits. 20 C.F.R. § 416.202; see also 20 C.F.R. § 416.501 (stating that a claimant may not be paid SSI for any time period that precedes the first month following the date on which an application was filed); see also Torres v. Chater, 125 F.3d 166, 171 n.1 (3d Cir. 1997) (noting that SSI benefits are not payable for any period prior to the filing of an application). Further, an application for benefits remains in effect until the date of the ALJ's decision. 20 C.F.R. § 416.330; see also Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (holding that a reviewing court is limited to determining “whether the claimant was entitled to benefits during a specific period of time, which period was necessarily prior to the date of the ALJ's decision”).
In her decision, the ALJ found Plaintiff had the following severe impairments: muscle, fascia, and tendon injury status-post stab wound to the right upper extremity; and mild lumbar degenerative disc disease. (R. at 18.) The ALJ found that Plaintiff's other alleged impairments were not severe, including her “medically determinable mental impairment of neurocognitive disorder.” (R. at 19.) The ALJ followed a special analysis to assess Plaintiff's alleged mental impairment at step two. Specifically, the ALJ rated the degree of functional limitation in four broad categories, known as the “paragraph B” criteria, which include: (1) understanding, remembering, or applying information; (2) interacting with others; (3) maintaining concentration, persistence, or pace; and (4) adapting or managing oneself. 20 C.F.R. § 416.920a(c). The ALJ assessed a mild limitation in understanding, remembering, or applying information, and she found Plaintiff had no limitation in the other categories. Accordingly, the ALJ found Plaintiff did not have a severe mental impairment. See § 416.920a(d)(1) (a rating of “none” or “mild” in the foregoing criteria will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities).
In making this finding, the ALJ considered, inter alia, the post-hearing consultative psychological examination ordered by the ALJ. Specifically, Caleb Loring IV, Ph.D. examined Plaintiff on May 2, 2019. (R. at 390-393.) The ALJ noted that in this examination, Plaintiff “displayed substantial deficits on tests of cognition, concentration, memory, and intelligence.” (R. at 19-20.) The ALJ stated “these findings are grossly inconsistent with the other medical evidence of record, so I give them no weight.” (R. at 20.) She also gave the examiner's opinions, “which included many extreme, marked, and moderate limitations based on these findings, little weight.” (R. at 20.) She noted that “the consultative physical examinations similarly show presentations from the claimant that were grossly inconsistent with her treatment records.” (R. at 20.) The ALJ stated here that her RFC analysis “reflects the degree of limitation” she found in Plaintiff's mental function analysis. (R. at 20.) She did not mention this consultative examination again in her decision.
The ALJ then found that Plaintiff has the RFC to perform light work with certain limitations. Her RFC finding did not appear to include any limitations based on Plaintiff's mental impairments. Here, the ALJ noted that she considered Plaintiff's alleged symptoms and the opinion evidence based on the requirements of SSR 16-3p and CFR §§ 416.929, 416.927. (R. at 22.) She detailed Plaintiff's hearing testimony and the allegations in Plaintiff's 2017 disability report. (R. at 22-23.) The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff'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.” (R. at 23.)
After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found that Plaintiff can perform work that exists in significant numbers in the national economy. (R. at 27.) The ALJ therefore concluded that Plaintiff has not been disabled since she filed her application on January 30, 2017. (R. at 28.)
B. Consideration of Plaintiff's Subjective Complaints
Plaintiff first argues that the ALJ failed to properly assess the evidence consistent with Plaintiff's subjective complaints. (Dkt. No. 16 at 16-32.) More specifically, Plaintiff contends that the ALJ did not properly consider her post-hearing psychological consultative examination in relation to Plaintiff's subjective statements about her mental impairments. The Commissioner responds that the ALJ's decision is supported by substantial evidence and she did not err in her analysis. (Dkt. No. 18.)
In evaluating a claimant's subjective symptoms, the ALJ follows a two-step process under which he must first determine whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms. Tyler v. Berryhill, No. 8:15-CV-04457-JDA, 2017 WL 461008, at *9 (D.S.C. Feb. 3, 2017). After determining the presence of an impairment, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which those symptoms limited his functioning. Id. at *10.
To guide the step two evaluation, 20 C.F.R. § 404.1529(c) provides a structure by which the SSA considers “objective medical evidence” and “other evidence.” While the former “is a useful indicator to assist . . . in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms . . . may have on your ability to work, ” the SSA will not reject statements about intensity, persistence and effects “solely because the available objective medical evidence does not substantiate your statements.” 20 C.F.R. § 404.1529(c)(2).
The ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *9. Specifically, the ALJ's decision must “consider all of the evidence in an individual's record, ” including, but not limited to, the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; any measures other than treatment the individual uses or has used to relieve pain or other symptoms; and any other factors concerning the individual's functional limitations and restriction due to pain or other symptoms. SSR 16-3p, at *2; see also 20 C.F.R. §§ 404.1529(c) and 416.929(c). The ALJ need not accept the claimant's subjective complaints “to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996).
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p, on March 28, 2016. See 2017 WL 5180304, at *13. Because the subject ALJ decision was issued after March 28, 2016, the undersigned has analyzed Plaintiff's allegations under SSR 16-3p. The undersigned notes that SSR 16-3p discontinues use of the term “credibility;” however, “the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider the claimant's report of his own symptoms against the backdrop of the entire case record.” Best v. Berryhill, No. 0:15-CV-02990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (internal citations omitted).
Upon review, the undersigned cannot find that substantial evidence supports the ALJ's consideration of Plaintiff's subjective complaints specific to her alleged mental impairments. As noted by Plaintiff, the ALJ found a consultative psychological examination and “memory testing” was needed because the record did not sufficiently establish a mental health diagnosis. (R. at 71.) Specifically, at the March 27, 2019 ALJ hearing, Plaintiff testified that she had been married to a “very abusive” man and he once hit her in the head with a 2 x 4. (R. at 43.) She testified that after this assault, she had “migraine headaches all the time” as well as “black outs.” (R. at 43-44.) Plaintiff testified that one of her blackouts resulted in a car crash on March 11, 2019. (R. at 44.) She testified she cannot remember verbal instructions and she has “issues remembering stuff.” (R. at 50.) The ALJ found a consultative examination was needed based on this testimony. (R. at 71.)
Then, in her decision, the ALJ discounted the resulting test findings and the examiner's opinions largely because they were not consistent with the record she previously found insufficient. It appears the ALJ found Plaintiff exaggerated her symptoms at her post-hearing consultative examinations. Specifically, at step two in her decision, the ALJ assessed Plaintiff's mental impairments as follows:
Other than the May 2019 consultative psychological examination, discussed below, the medical evidence of record shows minimal abnormalities on objective psychiatric examinations or mental status examinations and no mental health treatment. First, a brief mental status examination on April 10, 2015 showed minimal abnormalities (Ex. lF/2). The claimant remembered two of three items at three minutes, she remembered three of three items with provocation, she remembered the last two presidents, and she remembered the date of birth of all three of her children (Ex. lF/2). This shows no more than mild limitation in remembering information. Next, on November 23, 2016, an examination showed appropriate and cooperative behavior and normal mentation with no psychiatric abnormalities (Ex. 3F/3). Additionally, on August 6, 2017, the claimant had cooperative behavior and normal mood with no psychiatric abnormalities (Ex. 5F/2). Another examination on March 10, 2019 showed no psychiatric abnormalities with intact orientation and alertness, normal speech, good eye contact, and normal interaction, affect, and behavior (Ex. 7F/3). Finally, on May 21, 2019, an examination showed intact orientation and alertness, good answers to questions, and good eye contact (Ex. 8F /2).
Nevertheless, on May 2, 2019, the claimant visited a consultative psychological examiner, Caleb Loving [sic], Ph.D., at my request (Ex. 9F). She “was very pleasant and cooperative throughout the interview and assessment” (Ex. 9F/l). She had good
grooming and hygiene, mixed eye contact, normal speech and language, and a “mildly dysphoric” affect (Ex. 9F /2). On examination, “her thought process appeared to be somewhat confused at times” (Ex. 9F/2). She denied thought content problems (Ex. 9F /2). She displayed substantial deficits on tests of cognition, concentration, memory, and intelligence (Ex. 9F/2). On standardized testing, she obtained a full scale IQ of 56, verbal comprehension of 63, perceptual reasoning of 63, working memory of 66, processing speed of 56, and similarly low scores on achievement testing (Ex. 9F/3). However, these findings are grossly inconsistent with the other medical evidence of record, so I give them no weight. Consequently, I also give Dr. Loring's opinions, which included many extreme, marked, and moderate limitations based on these findings, little weight (Ex. 9F/3-4, 6-7). Additionally, as discussed below, the consultative physical examinations similarly show presentations from the claimant that were grossly inconsistent with her treatment records
Finally, the opinions from the State agency psychological consultants also support the “paragraph B” findings. On May 8, 2017, Craig Hom, Ph.D. reviewed the claimant's records and opined that her mental impairment causes a mild limitation in understanding, remembering, or applying information, no limitation in interacting with others, no limitation in concentrating, persisting, or maintaining pace, and no limitation in adapting or managing oneself (Ex. lA/6). Rebekah Jackson, Ph.D. reviewed the case record on August 22, 2017 and reached the same conclusions (Ex. 4A/5). Dr. Hom and Dr. Jackson are acceptable medical sources with specialization in psychology, substantial expertise and experience in making such assessments on the record, and knowledge of the Social Security disability rules and regulations. Moreover, their opinions are consistent with the medical evidence of record, to which they cited and summarized in support of their assessments. As discussed above, the treatment records show no psychiatric abnormalities or mental health treatment (Ex. 2F-3F; 5F-7F). Therefore, the consultants' opinions receive great weight.(R. at 19-20.)
In the above analysis, the ALJ did not recognize that Dr. Loring specifically stated multiple times in his examination that Plaintiff did not appear to be malingering. For example, Dr. Loring found that in the interview and assessment, Plaintiff “appeared to put forth her best effort on tasks presented to her and did not appear to be promoting symptoms.” (R. at 390.) When discussing Plaintiff's mental status exam and test results, Dr. Loring stated
Ms. Branson was able to immediately repeat 3/3 unrelated words. After a brief delay, she was able to recall 0/3 unrelated words. Her effort on this task appeared to be good. It seemed as though she could have been experiencing some authentic memory problems . . . Her effort on testing appeared to be good. She had a difficult
time with Block Design and struggled on many of the subtests. She appeared to be somewhat confused.(R. at 391 (emphasis added).) Dr. Loring detailed Plaintiff's low scores on the WAIS-IV Test of Intellectual Ability and found:
When all of these scores are examined together, it is apparent they are all in the extremely low range. These scores would not be expected from an individual who has graduated high school, which indeed Ms. Branson has. Ms. Branson's effort on all tasks appeared to be good. It seems as though she potentially could be dealing with some cognitive problems that may be related to her history of head injuries. In addition, she apparently has a history of passing out, and it seems as though something is going on with her neurologically that could be significant.(R. at 392 (emphasis added).)
Based on these findings, Dr. Loring opined that Plaintiff “could probably work at a job that would require public contact but might become confused easily. . . [S]he would struggle but [sic] consistently complete even simple tasks at an adequate pace with persistence in a vocational setting.” (R. at 393.)
The ALJ's failure to acknowledge these comments on Plaintiff's legitimate effort is concerning given that they directly contradict the ALJ's primary reason for discounting the examination findings. Further, the other opinion evidence in the record specific to Plaintiff's mental impairments largely pre-date this examination by almost two years. (R. at 79, 93.) The May 2, 2019 examination findings directly bolster Plaintiff's testimony about her mental limitations, yet the ALJ appeared to ignore this evidence in her assessment of Plaintiff's subjective statements. As noted above, the ALJ only mentioned Dr. Loring's consultative examination in her step two analysis. The ALJ did not discuss this evidence in her assessment of Plaintiff's subjective statements, and her conclusions on this issue indicate that she did not consider this consultative examination here. After finding that Plaintiff'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, ” the ALJ stated that “[i]nsofar as the medical evidence at times shows significant findings, I assessed corresponding limitations in the claimant's residual functional capacity (RFC), which includes substantial restrictions.” (R. at 23.) The ALJ did not incorporate any of the findings from Dr. Loring's examination into Plaintiff's RFC, however.
Based on the foregoing, it is unclear whether the ALJ fully considered the findings from Dr. Loring's examination when assessing Plaintiff's subjective statements. Accordingly, the undersigned cannot determine whether the ALJ's findings as to Plaintiff's subjective symptoms are supported by substantial evidence, and remand is appropriate on this basis. See Small v. Saul, No. 2:20-CV-00970-RMG-MGB, 2021 WL 1877766, at *10 (D.S.C. Apr. 23, 2021) (finding the ALJ failed to properly consider “records that are consistent with Plaintiff's subjective complaints about the limitations he allegedly suffered due to his pain”; “Because the ALJ failed to properly consider these significant pieces of evidence, the undersigned cannot find that his analysis of Plaintiff's subjective complaints are supported by substantial evidence.”), adopted by, 2021 WL 1863257 (D.S.C. May 10, 2021); see also Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (remanding in part because “the ALJ failed to explain in his decision what statements by [claimant] undercut her subjective evidence of pain intensity as limiting her functional capacity”) (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“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.”)).
C. Remaining Allegations of Error
As mentioned above, Plaintiff also argues that remand is necessary because the ALJ: (1) improperly evaluated the medical opinion evidence; and (2) failed to adequately explain her findings regarding Plaintiff's RFC. (Dkt. No. 16.) The undersigned does not address these remaining allegations of error, as they may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). The undersigned notes, however, that the ALJ's consideration of Dr. Loring's consultative examination may impact Plaintiffs RFC assessment and the ALJ's analysis of the opinion evidence. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration Plaintiffs remaining allegations of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).