Opinion
C/A No. 0:18-3022-RMG-PJG
10-21-2019
Sonjie Davis, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Sonjie Davis, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In September 2014, Davis applied for DIB and SSI, alleging disability beginning July 11, 2014. Davis's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on April 12, 2017, at which Davis appeared and testified and was represented by Paul T. McChesney, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on September 7, 2017, concluding that Davis was not disabled from July 11, 2014 through the date of the decision. (Tr. 20-31.)
Davis was born in 1968 and was forty-six years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as a data entry clerk, a lay up operator at a factory, and a machine operator at a sprinkler company. (Tr. 277.) Davis alleged disability due to arthritis, high blood pressure, and degenerative disc disease. (Tr. 276.)
In applying the five-step sequential process, the ALJ found that Davis had not engaged in substantial gainful activity since her alleged onset date of July 11, 2014. The ALJ also determined that Davis's disorders of the spine, degenerative osteoarthritis in the knees and hands, and chronic pain syndrome were severe impairments. However, the ALJ found that Davis did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Davis retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she can sit, stand, and walk in combination for up to six hours each in an eight hour day and would need the ability to change positions one to two times per hour without
leaving the workstation and would need a stool to sit or stand without losing production. She can never climb ladders and can occasionally climb stairs. She can frequently balance, occasionally stoop, kneel, crouch, and crawl. She can frequently reach overhead and handle bilaterally and can frequently perform bilateral gross and fine manipulations. The claimant should avoid concentrated exposure to cold, humidity, wetness, and hazards.(Tr. 25.) The ALJ found that Davis was capable of performing past relevant work as a laminating machine off bearer, and that this work did not require the performance of work-related activities precluded by Davis's residual functional capacity. Therefore, the ALJ found that Davis was not disabled from July 11, 2014 through the date of the decision.
The Appeals Council denied Davis's request for review on October 3, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUE
Davis raises the following issue for this judicial review: Issue 1 Opinion evidence. The opinions of Davis's treating specialist, Dr. Jacobus, contain work-preclusive limitations which the ALJ improperly rejected. Where the ALJ improperly rejects the opinion evidence, can his decision be supported by substantial evidence? (Pl.'s Br., ECF No. 10.)
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527, 416.913, 416.927. Because the instant claims were filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Davis's applications for benefits were filed, unless otherwise specified.
Upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to recommend that this matter be remanded for further consideration and analysis by the ALJ. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence as the decision provides very little actual analysis as to why the ALJ provided only some weight to the opinion of Davis's treating pain specialist.
The law applicable to Davis's applications provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c), 416.927(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "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." Id. (quoting Craig, 76 F.3d at 590).
Upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the ALJ observed that the record included an opinion from "treating physician Dwight Jacobus, D.O." and the ALJ's evaluation of that opinion reads as follows:
Dr. Jacobus submitted a medical source statement on the claimant's behalf in April 2017 (Exhibit 13F). Dr. Jacobus noted that he last treated the claimant in March 2017 for low back pain, knee pain, chronic pain syndrome, and degenerative osteoarthritis of her knees (Exhibit 13F/1). Dr. Jacobus opined that she would be limited to a sedentary job due to the pain in her legs (Exhibit 13F/1). Dr. Jacobus
further opined that she would need to change positions between sitting and standing/walking every 30 minutes and would probably experience interruptions to concentration sufficient to interrupt tasks throughout the workday (Exhibit 13F/1). The undersigned gives this opinion some weight, as Dr. Jacobus is familiar with the claimant and has a treating relationship with her. The residual functional capacity incorporates a sit/stand option to allow the claimant to change positions and accommodate a range of pain symptoms. However, the record does not support that the claimant must be limited to work at the sedentary level.(Tr. 27-28.)
Preceding this paragraph, the ALJ summarized the medical record and discussed Davis's subjective complaints. (Tr. 36-27.) Further, the ALJ found a February 2015 consultative physical examination was entitled to some weight as "it did not provide any functional limitations or abilities to help explain what the claimant could or could not do," and that the opinions from the state agency record reviewers were entitled to some weight as "they did not have the benefit of reviewing additional evidence from 2016 and 2017." (Tr. 28.) However, it is unclear how the record does not support Dr. Jacobus's opinion that Davis should be limited to work at the sedentary level. Further, although the ALJ acknowledged that Dr. Jacobus opined Davis "would probably experience interruptions to concentration sufficient to interrupt tasks throughout the workday," the ALJ appears to have discounted this opinion without explanation as to how this opinion is inconsistent with and unsupported by the evidence or the clinical findings. While the Commissioner provides extensive argument and possible factual support for the ALJ's conclusions, the ALJ's decision lacks this analysis. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding meaningful review was precluded where an ALJ gave an opinion limited weight because "the objective evidence or the claimant's treatment history did not support the consultative examiner's findings" but did not specify what objective evidence or treatment history he was referring to). Further, Davis has directed the court to substantial medical evidence and clinical findings that arguably support Dr. Jacobus's opinion. (See Pl.'s Br. at 19-21, ECF No. 10 at 21-23.)
Davis also argues that the ALJ failed to consider Dr. Jacobus's specialty as a "treating pain specialist." As pointed out by the Commissioner, the ALJ did acknowledge that Davis returned to Dr. Jacobus in March 2017 to re-establish "pain management care." (Tr. 27.) But one further point bears mentioning, as it may affect the ALJ's determination on remand. According to the South Carolina Department of Labor, Licensing and Regulation, Dr. Jacobus's specialty is listed as orthopedic surgery, and effective May 31, 2019, the State Board of Medical Examiners temporarily suspended Dr. Jacobus's license to practice medicine based on information from the Office of Disciplinary Counsel. See S.C. Dep't of Labor, Licensing and Regulation, Med. Bd. https://verify.llronline.com/LicLookup/Med/Med.aspx?div=16 (search last name "Jacobus", first name "Dwight"; check "I'm not a robot"; click "Find"; follow the hyperlink for "Lic #333") (last visited Oct. 21, 2019). In light of the court's recommendation that this matter be remanded for further consideration of Dr. Jacobus's opinion for the reasons detailed above, these issues can be considered on remand for initial determination by the Commissioner, if appropriate.
In summary, upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision to discount the above opinions is supported by substantial evidence. See 20 C.F.R. §§ 404.1527(c), 416.927(c); cf. Mastro, 270 F.3d at 178 (stating that "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") (internal quotation marks and citation omitted). Even considering the ALJ's decision in its entirety, it is unclear that the ALJ considered all of the evidence in discounting Dr. Jacobus's opinion. Therefore, the court is constrained to agree with Davis that the ALJ's conclusory evaluation of this opinion evidence leaves the court guessing as to the support for the reasons Dr. Jacobus's opinion was given some weight. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Moreover, Davis has directed the court to substantial records that arguably support Dr. Jacobus's opinion, and where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence.
Accordingly, the court expresses no opinion as to whether further consideration of Dr. Jacobus's opinion by the ALJ should necessarily lead to a finding that the opinion is entitled to additional weight or that Davis is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
The court also notes that in considering whether Davis can return to her past relevant work, the ALJ appears to have erroneously stated that Davis could return to her past relevant work as "actually performed." (Tr. 29.) Specifically, the ALJ found that "[i]n comparing the claimant's residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant is able to perform it as actually performed. Based on the claimant's testimony, the vocational expert determined that the claimant performed this work at the medium exertional level. However, based on how the DOT classified it and how it is actually performed at the light level, it is an appropriate match to the residual functional capacity." (Tr. 29.) Thus, the ALJ appears to have meant as it is "generally performed throughout the national economy." See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2); SSR 82-61, 1982 WL 31387. If necessary, this error can be corrected on remand as well.
RECOMMENDATION
Based on 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 consideration as discussed above. October 21, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).