Opinion
Civil Action 8:20-cv-00897-TLW-JDA
06-07-2021
Nancy June Clowney, Plaintiff, v. Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States 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 the case 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
On November 2, 2016, Plaintiff filed an application for DIB alleging disability beginning May 1, 2010. [R. 152-53; see R. 15.] At the hearing, Plaintiff amended her disability onset date to November 28, 2015. [R. 34-35.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 60-86, 89-94.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on September 6, 2018, ALJ Nicole S. Forbes-Schmitt, conducted a de novo hearing on Plaintiff's claim. [R. 29-59.]
The ALJ issued a decision on January 9, 2019, finding Plaintiff not disabled under the Social Security Act (?the Act”). [R. 15-28.] At Step 1, the ALJ found Plaintiff met the Act's insured-status requirements through December 31, 2015, and did not engage in substantial gainful activity during the period from her alleged onset date of November 28, 2015, through her date last insured of December 31, 2015. [R. 17, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative joint disease of the right knee status post total knee arthroplasty, degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, and morbid obesity. [R. 17, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of hypertension, osteoarthritis of the left wrist, osteoarthritis of the right great toe, and generalized anxiety disorder. [R. 18.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 19, Finding 4.]
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 her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
[T]hrough the date last insured, the claimant had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except: She can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps or stairs, stoop, or crouch. She can never crawl. She can occasionally push or pull with the bilateral upper extremities. She can occasionally use foot controls with the right lower extremity. She can occasionally
reach overhead with the bilateral upper extremities. She should avoid concentrated exposure to extreme cold, vibrations, and workplace hazards.[R. 20, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that, through the date last insured, Plaintiff was capable of performing her past relevant work as a resource teacher. [R. 23, Finding 6.] Thus, the ALJ found that Plaintiff had not been under a disability as defined in the Act at any time from November 28, 2015, the alleged onset date, through December 31, 2015, the date last insured. [R. 24, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision but the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant request for judicial review on February 28, 2020. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and should be remanded. [Doc. 9.] Specifically, Plaintiff contends the ALJ erred by disregarding the opinion of Plaintiff's treating physician that her RFC was limited to sedentary or less [id. at 5-12; Doc. 14 at 1-3] and by improperly giving the greatest weight to the opinions of a non-examining and non-specialist physician [Doc. 9 at 12-15]. Plaintiff asserts that had the ALJ properly weighed the opinion evidence, she would have found Plaintiff was precluded from working even at the sedentary level and, even if Plaintiff could perform the full range of sedentary work, she would be entitled to benefits under the Grids. [Id. at 15; Doc. 14 at 7-8.]
The Commissioner contends the ALJ's decision should be affirmed because substantial evidence supports the ALJ's evaluation of the medical opinion evidence and of Plaintiff's subjective complaints. [Doc. 10 at 10-16.] The Commissioner also argues that the Grids do not apply to this case because it was decided at Step 4 of the sequential evaluation. [Id. at 16.]
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).
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.
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 five, 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 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); 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
Plaintiff argues that the ALJ erred in evaluating the medical source opinions. [Doc. 9 at 5-15.] The Commissioner, however, contends that the ALJ's analysis with respect to both the evaluation of the treating and non-treating physician opinions is supported by substantial evidence. [Doc. 10 at 10-13.]
Social Security Ruling 96-2p requires that when an ALJ assesses medical opinions, her decision “must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and . . . be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.” 1996 WL 374188. Moreover, ALJs are instructed to apply the factors provided in 20 C.F.R. § 404.1527-including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion-to all medical opinions. 20 C.F.R. § 404.1527(c), (f). More weight is generally given to the opinions of examining sources than to non-examining ones. Id. Additionally, more weight is generally given to opinions of treating sources than is given to opinions of non-treating sources, such as consultative examiners. Id. And, “if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (internal quotation marks omitted). Further, the determination of whether a claimant is disabled under the Act is a legal determination and ultimately one for the Commissioner, and not a medical source, to make. 20 C.F.R. § 404.1527(d)(1) (stating “[a] statement by a medical source that you are ‘disabled' or ‘unable to work' does not mean that we will determine that you are disabled”). A medical source opinion on that issue is not entitled to any special weight. 20 C.F.R. § 404.1527(d)(3). ALJs are further prohibited from substituting their medical opinions for those of medical providers, which the Fourth Circuit has referred to as the prohibited practice of the ALJ “playing doctor.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).
Dr. Montoya's Opinion
Plaintiff began seeing Sara B. Montoya, M.D., in 2005 as her primary care physician. [See R. 230-65, 295-626, 680-733.] In an Attending Physician's Statement dated February 15, 2017, Dr. Montoya noted that Plaintiff had been diagnosed with degenerative disc disease lumbar and lumbar myelopathy. [R. 650.] Dr. Montoya opined that Plaintiff could reasonably be expected to lift and/or carry 5 pounds occasionally and 1 pound frequently; that she could sit for 2 hours during an 8-hour work day; that she did not require an assistive device; and that she did not need to avoid dust, fumes, gases, extreme temperatures, humidity, or environmental pollutants. [Id.] Dr. Montoya also opined that Plaintiff could never work with or around hazardous machinery; could rarely push and pull, climb and balance, bend and stoop, and reach; could occasionally operate vehicles; and could frequently engage in gross and fine manipulation. [Id.] Dr. Montoya opined that Plaintiff would likely be absent from work more than four days per month and that the medical basis for her restrictions was severe degenerative disc disease that limits her ability to move her back. [R. 651.]
The ALJ's Evaluation of Dr. Montoya's Opinion
In assigning little weight to Dr. Montoya's opinion, the ALJ explained as follows:
The undersigned has considered the opinion of primary care physician Sara B. Montoya, M.D. (6F), who opined that the claimant could occasionally lift and/or carry up to five pounds and frequently lift and/or carry up to one pound. She found that the claimant could sit for up to two hours during an eight-hour workday, occasionally operate motor vehicles, rarely push and/or pull with arm and/or leg controls, rarely climb stairs
or ladders and balance, rarely bend and/or stoop, rarely reach (including overhead), and rarely work with or around hazardous machinery. The claimant did not require an assistive device to ambulate in a normal workday and did not need to avoid dust, fumes, gases, extreme temperatures, humidity, or other environmental pollutants (6F/1). Furthermore, she opined that the claimant was likely to be absent from work more than four days per month due to her impairments. The undersigned gives Dr. Montoya's opinion little weight because it was not authored during the relevant period but rather was authored in February 2017-more than one year after the period at issue (6F/2). In addition, Dr. Montoya did not base her opinion on the claimant's primary impairment at the time-her right knee-but rather, on the claimant's lumbar spinal condition-a condition for which there was no evidence of severe stenosis or frank impingement during the period at issue (1F/1; 2F/1). This calls into question the accuracy of Dr. Montoya's opinion regarding the claimant's functioning during the relevant period because the opinion was not authored during period at issue and did not concern the claimant's primary impairments at that time. Moreover, the opinion provides no indication of retroactive application and references no specific imaging results or physical examinations as support. The undersigned therefore gives Dr. Montoya's opinion little weight.[R. 22.]
Discussion
Plaintiff argues the ALJ “discounted Dr. Montoya's opinion under the incorrect assumption that the date of last insured (DLI) of December 31, 2015, was a cut off for consideration of evidence irrespective of whether it was relevant to the period prior to the date of last insured.” [Doc. 9 at 6.] Plaintiff contends that because Dr. Montoya had treated Plaintiff for over ten years and her treatment began before the date last insured, ?her opinion as to the severity of Plaintiff's limitations is relevant to the severity of the condition prior to the DLI.” [Id. at 7.] Plaintiff further argues that both her own testimony and that of Dr. Montoya “establish the disabling effect of her pain.” [Id. at 8.] Indeed, she maintains that proper application of the treating physician's rule to Dr. Montoya's opinion about the nature and severity of her impairment would entitle her to benefits. [Id. at 8-10.] The Commissioner, in contrast, contends that “the ALJ appropriately found that Dr. Montoya's opinion was not relevant to Plaintiff's pre-DLI condition . . . [b]ecause Dr. Montoya's opinion was not linked to Plaintiff's pre-DLI condition.” [Doc. 10 at 11.] The Court concludes that remand is needed as the ALJ's analysis is not adequate to allow for meaningful substantial evidence review.
In the Fourth Circuit, “[m]edical evaluations made after a claimant's insured status has expired are not automatically barred from consideration and may be relevant to prove a disability arising before the claimant's DLI.” Bird v. Commissioner, 699 F.3d 337, 340 (4th Cir. 2012). The Court has held that “retrospective consideration of evidence is appropriate when ‘the record is not so persuasive as to rule out any linkage' of the final condition of the claimant with his earlier symptoms.” Id. at 341 (citation omitted). And “retrospective consideration of medical evidence is especially appropriate when corroborated by lay evidence.” Id. at 342.
The Court initially notes that, assuming the Commissioner is correct that the ALJ found that Dr. Montoya's opinion was irrelevant because the record does not permit an inference of linkage with Plaintiff's pre-DLI condition, the ALJ committed an error of law in so finding. See Id. Here, Dr. Montoya's statement explained that the limitations described were based on Plaintiff's degenerative disc disease of the lumbar spine and her lumbar myelopathy, which Dr. Montoya had diagnosed prior to the DLI. [E.g. R. 305.] See Evans v. Colvin, No. 8:14-cv-04019-TLW-JDA, 2016 WL 536629, at *20 (D.S.C. Jan. 20, 2016) (holding that dismissal as “marginally material” evidence of a source statement authored after DLI was not supported by substantial evidence when the “lifting restrictions were based on [the claimant's] shoulder injury and surgical intervention, which occurred prior to the DLI”), Report and Recommendation adopted by 2016 WL 527830 (D.S.C. Feb. 10, 2016). Moreover, Dr. Montoya's notes from the period both before the DLI and after, through the date that Dr. Montoya authored the opinion, consistently indicate that Plaintiff's pain was generally unchanged from her last visit. [R. 305 (note from 8/28/15 visit noting that“[c]ompared to the last visit the pain is unchanged”); R. 302 (note from 9/23/15 visit noting that“[c]ompared to the last visit the pain is unchanged”); R. 295 (note from 5/6/16 visit noting that “[c]ompared to the last visit the pain is unchanged”); R. 713 (note from 2/6/17 visit noting that“[c]ompared to the last visit the pain is unchanged”).] The Court therefore concludes that “[a] reasonable ALJ could readily infer that [Dr. Montoya's opinion] reflects [Plaintiff's] condition not only in [February 2017] but also [in November and December of 2015], and perhaps earlier.” Finney v. Colvin, 637 Fed.Appx. 711, 719 (4th Cir. 2016) (King, J., dissenting).
The Court recognizes that, the Commissioner's view of the ALJ's decision notwithstanding, the ALJ may have determined that Dr. Montoya's opinion was relevant under Bird but that the opinion was nonetheless entitled to little weight. See Brown v. Colvin, No. 6:15-cv-2539-DCN, 2016 WL 5539522, at *3 n.4 (D.S.C. Sept. 30, 2016) (noting that Bird does not require retrospective evidence be given any specific weight or require the ALJ to completely ignore the fact that such evidence was submitted after the date last insured”). Even to the extent that this was the ALJ's intention, the Court concludes that the ALJ failed to construct a satisfactory logical bridge regarding how her decision accounted for Dr. Montoya's opinion. Assuming that the ALJ accepted the substance of Dr. Montoya's opinion but understood it only to concern Plaintiff's condition at the time the opinion was authored, the ALJ would need to decide how the opinion would affect the ALJ's view of Plaintiff's condition 14 months earlier. A central issue in this case was whether Plaintiff was accurately describing the severity of her symptoms and how those symptoms limited her functionality. That her long-time treating physician believed in February 2017 that her condition was so limiting that she would have to miss four or more days of work per month appears to lend strong corroboration to Plaintiff's testimony regarding the severity of her impairment. That would be especially true in light of the fact that Dr. Montoya's notes during the period seemed to indicate that Plaintiff's pain level was fairly consistent from visit to visit, suggesting that Plaintiff's condition did not significantly worsen between her DLI and the date that the opinion was authored. In the face of that evidence, it was incumbent on the ALJ to explain why the opinion played no substantial role in her analysis, at least in corroborating Plaintiff's testimony regarding the severity of her symptoms and the limitations they caused. See Keefer v. Comm'r of Soc. Sec. Admin., No. 1:14-236-SVH, 2015 WL 57939, at *13 (D.S.C. Jan. 5, 2015) (“While the ALJ determined that Mr. Hair's statement was entitled to minimal weight because it was chronologically distant from the period relevant to this decision, he neglected to address the fact that Mr. Hair's statement corroborated indications Plaintiff made to his physicians that back pain and depression were longstanding problems and suggested that the impairments were severe enough to interfere with his ability [to] meet workplace attendance requirements.”). With the ALJ not having constructed an appropriate logical bridge, the Court cannot meaningfully conduct substantial-evidence review.
The Court further concludes that to the extent that the ALJ decided to give little weight to Dr. Montoya's opinion even as to Plaintiff's condition in February 2017, her analysis failed to comply with the treating physician rule. The Fourth Circuit recently discussed the rule at length in Arakas:
In Social Security disability cases, the “treating physician rule” is well-established. SSA instructs claimants that “[g]enerally, ” SSA will “give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations.” 20 C.F.R. § 404.1527(c)(2).
Accordingly, the treating physician rule requires that ALJs give “controlling weight” to a treating physician's opinion on the nature and severity of the claimant's impairment if that opinion is (1) “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and (2) “not inconsistent with the other substantial evidence” in the record. Id. Upon deciding not to give controlling weight to a treating physician's opinion, ALJs must determine the appropriate weight to be accorded to the opinion by considering “all of ... the factors” listed in the regulation, which include the length of the treatment relationship, consistency of the opinion with the record, and the physician's specialization. Id. § 404.1527(c)(2)-(6). SSR 96-2p further notes that “[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” 1996 WL 374188, at *4 (July 2, 1996) (emphases added).
We have emphasized that the treating physician rule is a robust one: “[T]he opinion of a claimant's treating physician [must] be given great weight and may be disregarded only if there is persuasive contradictory evidence.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). In Coffman, the ALJ discredited a treating physician's opinion regarding the claimant's ability to work by stating that “[t]he weight to be given such [a] conclusionary statement depends on the extent to which it is supported by specific and completed clinical
findings and other evidence. I find that this conclusionary statement does not have the required support in the record.” Id. at 517-18. We held that the ALJ misstated the legal standard because a “treating physician's testimony is ignored only if there is persuasive contradictory evidence.” Id. at 518 (quoting Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986)).
Here, the ALJ made the same legal error. While he reasoned that the “lack of substantial support from the other objective evidence of record” rendered Dr. Harper's opinion “less persuasive, ” A.R. 514, the law makes it clear that such support is not necessary for according controlling or great weight to a treating physician's opinion. Rather, the opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Coffman, 829 F.2d at 517. Therefore, the ALJ applied an incorrect legal standard, contravening both agency policy and Fourth Circuit law. See Hines, 453 F.3d at 561 (holding that ALJ applied an “improper standard to disregard the treating physician's opinion that [claimant] was fully disabled”).Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106-07 (4th Cir. 2020).
Here, as in Arakas, the ALJ cited various reasons for discrediting the doctor's opinion regarding the severity of the patient's symptoms and the effect on the patient's functionality [R. 22], but none of them were based on unacceptable clinical or laboratory diagnostic techniques or substantial evidence in the record that contradicted the doctor's opinion. See Small v. Saul, 2:20-cv-00970-RMG-MGB, 2021 WL 1877766, at *9 (D.S.C. Apr. 23, 2021) (holding that ALJ erred in not affording treating physician's opinion controlling weight when “the ALJ's analysis fail[ed] to establish that [the] opinion [was] based on medically unacceptable clinical or laboratory diagnostic techniques or [was] contradicted by the other substantial evidence in the record”), Report and Recommendation adopted by 2021 WL 1863257 (D.S.C. May 10, 2021). The ALJ indicates that the accuracy of Dr. Montoya's opinion concerning the limitations caused by Plaintiff's back problems is “call[ed] into question” because Dr. Montoya did not address Plaintiff's limitations caused by her knee problems as well, which the ALJ described as Plaintiff's “primary impairment at that time.” [R. 22.] But it was not for the ALJ to critique Dr. Montoya's choice of the subject she wished to offer an opinion, and her choice to limit her opinion to the limitations caused by Plaintiff's back problems is no indication of any error on the part of the doctor. Indeed, it seems likely that, given Plaintiff's TKA in October 2015, Dr. Montoya simply decided to focus her opinion on the primary remaining impairment, especially given her view that that impairment was so limiting even by itself. Dr. Montoya's choice was not a valid reason not to give the opinion controlling weight.
The ALJ also states that Dr. Montoya's opinion “references no specific imaging result or physical examinations as support.” [R. 22.] First, the Court notes that even though the opinion itself does not reference imaging results, Dr. Montoya's progress notes state that “[r]adiographic findings include disc degeneration.” [R. 295, 305.] Moreover, as noted, the ALJ found that her degenerative disc disease of the lumbar spine was a severe impairment and that Plaintiff's medically determinable impairments could reasonably be expected to cause her alleged symptoms. The question at that point was simply the severity of symptoms and their limiting effect on her functionality, and support from other objective medical evidence was not needed for Dr. Montoya's opinion to be given controlling weight regarding the severity of Plaintiff's symptoms and the effect on her functionality in February 2017. See Arakas, 983 F.3d at 107; Wallace v. Saul, No. 4:19-cv-02077-DCC, 2021 WL 49949, at *3 (D.S.C. Jan. 6, 2021) (holding that “the ALJ's finding of a ‘lack of objective evidence of neurological or strength deficits in records from the claimant's medical providers from Novant Health' was not a finding of inconsistency between [the treating physician's] opinion and the other substantial evidence of record and, therefore, was not a proper basis for rejecting his opinion”).
In sum, for all of the foregoing reasons, the Court is unable to determine that the ALJ properly evaluated and accounted for Dr. Montoya's opinion. The ALJ therefore recommends that the ALJ's decision be reversed and the case remanded for proper application of the rules discussed above.
Plaintiff also argues that Grid Rule 201.14 would require a finding of disability if Plaintiff is unable to perform work at the sedentary level. [Docs. 9 at 15; 14 at 7-8.] The ALJ should consider this issue on remand if she finds that Plaintiff is unable to perform such work.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.