Opinion
C/A No.: 1:19-1282-RBH-SVH
04-16-2020
Michelle Tocolla Edwards, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On May 21, 2015, Plaintiff filed an application for DIB in which she alleged her disability began on May 11, 2011. Tr. at 174-81. Her application was denied initially and upon reconsideration. Tr. at 106-09, 115-18. On November 15, 2017, Plaintiff had a video hearing before Administrative Law Judge ("ALJ") Edward T. Morriss. Tr. at 51-74 (Hr'g Tr.). The ALJ issued an unfavorable decision on April 20, 2018, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-29. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-8. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on May 2, 2019. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 39 years old at the time of the hearing. Tr. at 54. She obtained a college degree in nursing. Id. Her past relevant work ("PRW") was as a nurse. Tr. at 55. She alleges she has been unable to work since May 11, 2011. Tr. at 55.
During the hearing, the ALJ noted Plaintiff had appeared before him on a prior application and that he had issued an unfavorable decision dated May 15, 2013. Tr. at 54-55. Plaintiff's counsel recognized res judicata applied to the prior decision and indicated she would amend her onset date to May 16, 2013, the day after the prior decision. Tr. at 55. However, Plaintiff did not verbally affirm her counsel's representation, and no written request for an amended onset date appears in the file. The ALJ's decision reflects the original alleged onset date. See Tr. at 14.
2. Medical History
An x-ray of Plaintiff's lumbar spine showed L5-S1 degenerative disc disease ("DDD") with spondylolisthesis on February 3, 2012. Tr. at 352.
On February 18, 2013, Plaintiff presented to the emergency room ("ER") at Conway Medical Center ("CMC") with a complaint of pain in her low back and right leg. Tr. at 312. Charles Tarbert, M.D. ("Dr. Tarbert"), noted no evidence of an acute cord syndrome. Tr. at 313. He treated Plaintiff's symptoms and advised her to follow up with her primary care physician. Id.
Plaintiff presented to the ER at CMC with abdominal pain on August 23, 2013. Tr. at 304. Mark Jeanjaquet, M.D. ("Dr. Jeanjaquet"), assessed abdominal pain, diarrhea, hemorrhoids, nausea, and vomiting and prescribed Phenergan 25 mg and Vicodin 5 mg. Tr. at 307.
Plaintiff reported to the ER at CMC with increased pain to her left leg and associated numbness on September 12, 2013. Tr. at 299. Dr. Tarbert diagnosed sciatica and prescribed Flexeril 10 mg, Prednisone 20 mg, and Vicodin 5 mg. Tr. at 301.
On October 23, 2013, Plaintiff presented to the ER at CMC with a complaint of abdominal pain. Tr. at 289. Dr. Tarbert assessed abdominal pain and uterine fibroids. Tr. at 293. He discharged Plaintiff with prescriptions for Zofran 4 mg and Percocet 5 mg and advised her to follow up with her primary care physician. Id.
On January 1, 2014, the Horry County Police Department transported Plaintiff to the ER at CMC, after her son contacted them to report she had overdosed on medication. Tr. at 281. Upon responding to the scene, officers noted shots had been fired in the house and found Plaintiff in bed with a gun. Id. Plaintiff denied having fired the gun. Id. John Rogowski, M.D. ("Dr. Rogowski"), diagnosed major depression with suicidal ideation and alcohol abuse and authorized Plaintiff's transfer to Lighthouse Care Center. Tr. at 285.
Plaintiff's husband was employed as a Conway Police Officer, and Plaintiff was found with his service revolver. Tr. at 281.
Plaintiff was hospitalized at Lighthouse Care Center from January 3, through January 10, 2014. Tr. at 364-66. She indicated she had felt more depressed because she was unemployed, her husband was working more hours, and her mother-in-law was meddling in her family. Tr. at 364. She endorsed feelings of sadness, loneliness, lack of energy, and poor sleep. Id. On mental status exam, Plaintiff had fair hygiene, cooperative attitude and behavior, constricted affect, depressed mood, normal language, normal thought process and thought content, average intelligence, and normal concentration, attention span, and recent and remote memory. Tr. at 365. She had poor judgment and insight. Id. Her admission diagnosis was major depressive disorder, and she had a global assessment of functioning ("GAF") score of 20. Id. Plaintiff was started on Paxil and her dose was titrated up to 15 mg over the course of her hospitalization. Id. She admitted she had taken her husband's service revolver to "make a point," but denied having wanted to kill herself or others. Tr. at 375. Her sleep, appetite, mood, insight, and judgment improved. Tr. at 365. She denied suicidal and homicidal ideation and was more motivated, alert, and cooperative. Id. Olga Victa, M.D. ("Dr. Victa"), discharged Plaintiff with prescriptions for Hydrocodone 10-325 mg, Lidoderm patch, Trazodone 300 mg, and Paxil 15 mg. Tr. at 366. She instructed Plaintiff to follow up for mental health treatment and continue cognitive behavioral therapy ("CBT"). Id. She assessed a GAF score of 45 upon discharge. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 11-20 indicates some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). DSM-IV-TR.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
Plaintiff presented to psychiatrist Mark Dwight Glenn, M.D. ("Dr. Glenn"), for medication management on January 21, 2014. Tr. at 456. She indicated she was taking Paxil 10 mg and Trazodone 300 mg and had no negative side effects. Id. Plaintiff denied suicidal and homicidal ideation, and Dr. Glenn described her as calm, pleasant, and demonstrating clear thought processes. Tr. at 456-57. He noted no abnormalities on mental status exam. Tr. at 458. He continued Plaintiff's medications and indicated she had been scheduled for individual therapy. Tr. at 459.
Plaintiff visited Dr. Glenn for medication follow up on February 4, 2014. Tr. at 453. Dr. Glenn described Plaintiff's mood as calm and pleasant and her thought process as clear. Id. He noted no side effects from medication. Id. A mental status exam was normal. Tr. at 454-55. He assessed depressive disorder, not otherwise specified, with associated anxiety and posttraumatic stress disorder ("PTSD"). Tr. at 455. He provided the following statement for vocational rehabilitation: "It is my professional opinion that at this time she is medically stable and able to do the online college coursework which she has planned." Tr. at 459.
On February 24, 2014, Plaintiff reported to David Lane, LCSW ("SW Lane"), that she had attempted suicide following an argument with her husband. Tr. at 448. She claimed her husband had informed her that his mother thought she was manipulative. Id. She alleged she had been raped while stationed in Korea in 1997 or 1998 and declined to report it because she did not want to be labeled as "crazy." Id. Plaintiff endorsed pain from her lower back to her knee and described it as gnawing, pricking, and sharp and an eight of 10. Tr. at 451. She stated it was exacerbated by prolonged sitting and standing. Id. SW Lane described the following on mental status exam: dressed casually; well-groomed; cooperative behavior; good eye contact; normal psychomotor activity; normal rate, tone, and volume of speech; anxious and sad mood; anxious, sad, tearful, and congruent affect; denied suicidal and homicidal ideation; denied hallucinations and delusions; intact thought processes; intact memory and orientation; intact judgment; and intact insight. Tr. at 449-50. He assessed PTSD and indicated Plaintiff should continue individual CBT to reduce symptoms and increase coping skills. Tr. at 450. He assessed a GAF score of 58. Tr. at 451.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or coworkers)." DSM-IV-TR.
On May 5, 2014, Plaintiff presented to Sarah B. Stevens, Ph.D. ("Dr. Stevens"), for a compensation and pension ("C&P") examination. Tr. at 432-47. Dr. Stevens found Plaintiff did not have a diagnosis of PTSD that conformed to the Diagnostic and Statistical Manual-Fifth Edition ("DSM-5") criteria. Tr. at 433. She indicated Plaintiff's diagnoses included unspecified depressive disorder and unspecified trauma and stressor-related disorder. Id. She described Plaintiff's mental diagnoses as causing occupational and social impairment with reduced reliability and productivity. Tr. at 435. Plaintiff admitted to drinking three to four alcoholic beverages per day. Tr. at 439. Dr. Stevens identified Plaintiff's symptoms as depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Tr. at 443. She described Plaintiff as appearing "markedly anxious" and having "markedly dysphoric mood." Tr. at 444. She noted Plaintiff's eye contact was poor. Id. She indicated Plaintiff had initiated mental health treatment in May 2002, but did not report a history of military sexual trauma until February 2014. Tr. at 445. She found the evidence suggested Plaintiff's symptoms of depression and trauma were more likely than not related to her history of child sexual abuse, and less likely than not related to possible military sexual trauma. Tr. at 447.
On July 9, 2014, Plaintiff presented to Reshma Khan, M.D. ("Dr. Khan"), for a gynecological consultation. Tr. at 400. She complained of pelvic pain and heavy bleeding with clots. Id. Dr. Khan noted a recent pelvic ultrasound showed fibroids measuring up to 3.7 centimeters. Id. She performed an endometrial biopsy and pap smear and scheduled Plaintiff for total vaginal hysterectomy. Tr. at 406.
Plaintiff subsequently presented to the ER at the Charleston Veterans Administration Medical Center ("VAMC"), complaining of acute-on-chronic cervical radiculopathy to the right upper extremity, left-sided sciatica to the mid-calf, and chronic pain. Tr. at 408. Sarah M. Hawkins, R.N. observed Plaintiff to ambulate to triage slowly while guarding her right arm. Tr. at 492. She noted Plaintiff had equally limited bilateral hand grips. Id. Deborah A. Younger, M.D., noted no abnormalities on physical exam. Tr. at 411. She assessed acute-on-chronic right cervical radiculopathy and low back pain with left sciatica and prescribed intramuscular Solumedrol and a Medrol Dosepak. Tr. at 412.
On July 23, 2014, Dr. Glenn provided a second letter stating Plaintiff was "mentally stable and able to do the college coursework which she ha[d] planned." Tr. at 501. He noted his last visit with Plaintiff was the post-hospitalization follow up in February 2014. Id.
Dr. Khan performed total vaginal hysterectomy on August 25, 2014. Tr. at 476, 522-23. Lindsay D. Foley, M.D. ("Dr. Foley"), discharged Plaintiff the following day with instructions to avoid driving for two weeks and while taking narcotic medications and not to lift greater than 10 pounds for six weeks. Tr. at 477.
On August 29, 2014, Plaintiff reported worrying about her children and fear that others might harm her. Tr. at 514. She endorsed depression and anxiety and indicated she did not feel safe. SW Lane observed Plaintiff to be dressed casually and well-groomed; to demonstrate cooperative behavior, good eye contact, normal psychomotor activity, and normal speech; to have anxious and depressed mood and affect; to be tearful at times; to deny suicidal and homicidal ideation, hallucinations, and delusions; to have intact thought processes, memory, orientation, and judgment; and to show fair insight. Tr. at 515.
Plaintiff followed up with Dr. Glenn for medication management on January 7, 2015. Tr. at 516. She reported she had separated from her husband and they were getting along better. Id. She indicated Paxil and Trazodone continued to help with mood and sleep. Id. She acknowledged drinking three glasses or more of wine on three days per week. Id. Dr. Glenn informed Plaintiff that alcohol was a depressant substance that was likely contributing to her problems. Id. Plaintiff agreed to attend a weekly therapy group targeted to reduce her alcohol intake. Tr. at 517. Dr. Glenn described Plaintiff's mood as calm and pleasant and her thought process as clear, but noted she experienced intermittent periods of depression. Id. He stated Plaintiff had been too sedated on a higher dose of Paxil. Tr. at 518. He continued Plaintiff's medications. Id.
On July 23, 2015, Plaintiff complained of lower back pain. Tr. at 646. She indicated she had been unable to make an appointment for an epidural steroid injection ("ESI") and was considering back surgery. Id. She described her pain as radiating from her back down both legs, worse on the left, and associated with tingling. Id. She rated her pain as an eight-to-nine. Id. She also rated neck pain as a nine and described it as radiating from her shoulder through her left arm and associated with weakness, numbness, and dropping items. Id. She endorsed hearing loss, fatigue, and hemorrhoids. Id. X-rays of Plaintiff's cervical spine showed stable alignment status post-anterior cervical discectomy and fusion at C4-5 and mild DDD at the unfused lower levels of the cervical spine. Tr. at 543. Ginia Pierre, M.D. ("Dr. Pierre"), noted good range of motion ("ROM") of the cervical and lumbar spine, negative straight-leg raising ("SLR") test, equal reflexes, and 5/5 motor strength. Tr. at 649. She described Plaintiff as alert and oriented times three with appropriate affect. Id. Plaintiff reported tenderness to palpation in the left paralumbar spine and below the cervical area in the upper back. Id. Dr. Pierre indicated she would proceed with myelogram of the lumbar spine. Id.
On August 11, 2015, a thyroid ultrasound showed multiple nodules. Tr. at 541-42.
Plaintiff presented to Dalal Akoury, M.D. ("Dr. Akoury"), for a consultative examination on August 17, 2015. Tr. at 528-30. She complained of chronic pain that affected her lower back, neck, and bilateral knees. Tr. at 528. She described constant, moderate pain that radiated to her lower back and lower extremities. Id. Dr. Akoury observed Plaintiff to be oriented to person, place, and time; to be cooperative and show no signs of distress; and to follow and assist when given verbal instruction. Tr. at 529. He observed Plaintiff to ambulate with normal gait and without the use of an assistive device. Tr. at 530. He noted normal ROM, no edema, no tenderness to palpation, normal sensation, 5/5 strength, and normal reflexes. Tr. at 529-30. His impressions were chronic neck and back pain by history, PTSD by history, hypothyroidism by history, depression by history, and asthma by history, but noted "[n]ormal exam today." Tr. at 530.
Plaintiff presented to Benjamin Zamora, M.D. ("Dr. Zamora"), for a C&P exam on August 19, 2015. Tr. at 622. Dr. Zamora noted Plaintiff had been diagnosed with degenerative arthritis of the spine in 2012 based on magnetic resonance imaging ("MRI") showing DDD at L4-5 and L5-S1. Tr. at 623. Plaintiff reported back pain that radiated to the bilateral lower extremities and was accompanied by paresthesia. Id. Dr. Zamora stated Plaintiff's exam was consistent with mild bilateral lower extremity radiculopathy. Id. He noted Plaintiff demonstrated abnormal ROM of the thoracolumbar spine with forward flexion to 50/90 degrees and extension to 25/30 degrees. Tr. at 623-24. He noted pain on exam, but indicated it did not result in functional loss. Id. He indicated Plaintiff had no pain with weight bearing or localized tenderness and was able to perform repetitive use testing without function or ROM loss. Tr. at 624. Dr. Zamora observed Plaintiff to demonstrate 5/5 muscle strength as to bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and right great toe extension. Tr. at 625. He denied Plaintiff demonstrated muscle atrophy. Tr. at 626. He stated Plaintiff had normal bilateral deep tendon reflexes ("DTRs") at the knees and ankles. Id. He noted normal sensation to light touch at Plaintiff's L2 and L3-4 dermatomes, but decreased sensation to light touch at her bilateral L4, L5, and S1 dermatomes. Id. SLR testing was negative bilaterally. Id. He confirmed that Plaintiff experienced radicular pain. Tr. at 626-27. He indicated Plaintiff's symptoms included mild intermittent pain, numbness, and paresthesia/dysesthesia. Tr. at 627. He noted involvement of Plaintiff's sciatic nerve roots associated with mild bilateral radiculopathy. Id. He stated Plaintiff had no ankylosis of the spine and no neurologic abnormalities. Id. Dr. Zamora indicated Plaintiff regularly used a cane as a normal mode of locomotion. Tr. at 628. He stated Plaintiff's thoracolumbar spine condition "[w]ould limit a physical type of job." Tr. at 629.
Plaintiff presented to Jonathan Simons, Ph.D. ("Dr. Simons"), for a consultative mental exam on or about August 25, 2015. Tr. at 531-33. She endorsed anxiety with anxiety attacks and depression with suicidal ideation. Tr. at 531. She indicated she slept up to 12 hours per day and had poor appetite. Id. She reported a history of rape and abusive relationships and admitted to drinking up to a bottle of wine per day. Id. Dr. Simons described Plaintiff as adequately groomed; demonstrating a sad facial expression; having no problems with posture, gait, or balance; being polite, appropriate, and cooperative; showing no problems with speech or language; demonstrating logical thoughts and appropriate thought content; maintaining poor eye contact; and being at least mildly guarded. Tr. at 532. He stated Plaintiff's mood was depressed, her affect was labile, and she was tearful through most of the evaluation. Id. He indicated Plaintiff showed no problems with perceptual abilities and was adequately oriented. Id. Dr. Simons noted Plaintiff performed serial sevens poorly and serial threes with one mistake. Id. He indicated Plaintiff's attention/concentration appeared to be impaired, but she seemed to have above-average intellectual abilities and no problems with recent or remote memory. Id. He noted Plaintiff appeared to have insight into her problems, but exercised poor judgment in using alcohol. Id. Plaintiff reported inability to drive, but drove herself to the evaluation. Tr. at 531, 532. She indicated she could cook, but denied shopping, managing money, and performing chores. Id. She reported few activities, aside from sleeping and watching television, and indicated she sometimes avoided bathing for a month. Id.
Dr. Simons indicated there was "no reason to suspect exaggeration or discrepancies in [Plaintiff's] report, other than her report of only 2 activities in life." Id. He noted Plaintiff's depression and anxiety appeared to have significantly worsened in 2013. Id. He stated Plaintiff seemed to meet diagnostic criteria for severe major depression without psychotic features, panic disorder without agoraphobia, and PTSD. Tr. at 533. He felt Plaintiff "might have underestimated her activities to a mild extent," but still had "severely impaired" activities of daily living ("ADLs"). Id. He stated it did "not seem likely that social problems would interfere with her ability to function in work settings," as she "isolate[d], but did not report problems getting along with others." Id.
Plaintiff underwent a thyroid biopsy on August 31, 2015. Tr. at 538-39. It showed a benign follicular nodule. Tr. at 603.
On September 9, 2015, state agency medical consultant Jean Smolka, M.D. ("Dr. Smolka"), assessed Plaintiff's physical residual functional capacity ("RFC") as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; never climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs, stoop, kneel, crouch, crawl, and reach overhead with the bilateral upper extremities; frequently balance; and avoid concentrated exposure to hazards, fumes, odors, dusts, gases, poor ventilation, etc. Tr. at 82-85. State agency medical consultant Angela Saito, M.D. ("Dr. Saito"), assessed the same physical RFC on October 28, 2015. Compare Tr. at 82-82, with Tr. at 98-101.
On September 10, 2015, state agency consultant Lisa Clausen, Ph.D. ("Dr. Clausen"), completed a psychiatric review technique ("PRF"), considering Listings 12.04 for affective disorders, 12.06 for anxiety-related disorders, and 12.09 for substance addiction disorders. Tr. at 80. She assessed no episodes of decompensation, mild restriction of ADLs, moderate difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Id. She stated Plaintiff appeared to exhibit social dysfunction and "would work best in an environment that precludes ongoing interaction with the general public." Tr. at 81. She completed a mental RFC assessment, indicating Plaintiff was moderately limited in her abilities to interact appropriately with the general public and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 85-86. Dr. Clausen wrote the following: "The c[laimant] would function best in situations that preclude ongoing interaction with the general public. She may exhibit occasional behavioral extremes when not compliant with medication/treatment and when engaged in substance abuse. She would work best in an environment with low social stimulation." Tr. at 86.
Plaintiff followed up with Dr. Glenn for medication management on September 26, 2015. Tr. at 595. She admitted to drinking two glasses of wine on some days, but indicated she was drinking less than she had in the past. Id. Plaintiff agreed to attend a substance abuse therapy group. Id. She indicated Paxil had become ineffective and she had stopped taking it. Id. Dr. Glenn recommended Plaintiff attend additional group therapy to address depression and PTSD. Id. He noted Plaintiff had "longstanding problems with stress related to interacting with others (resulting in tendencies to isolate at times)." Id. He described Plaintiff's mood as calm and pleasant and her thought processes as clear. Id. He indicated no abnormalities on mental status exam. Tr. at 596-97. He continued Trazodone. Tr. at 597.
Dr. Glenn completed a form describing Plaintiff's symptoms and limitations. Tr. at 240-41. He identified Plaintiff's symptoms as: anhedonia or pervasive loss of interest in almost all activities; appetite disturbance with change in weight; sleep disturbance; psychomotor agitation or retardation; decreased energy; feelings of guilt or worthlessness; difficulty concentrating or thinking; generalized persistent anxiety; apprehensive expectation; vigilance and scanning; recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror, and sense of impending doom, occurring on the average of at least once per week; recurrent obsessions or compulsions which are a source of marked distress; and recurrent and intrusive recollections of a traumatic experience which are a source of marked distress. Tr. at 240. He noted "weight fluctuates per pt" and "psychomotor noted at intermittent intervals." Id. He indicated Plaintiff was not experiencing hallucinations, delusions, or paranoid thinking at the time, but had experienced some paranoia in the past. Id. He stated Plaintiff had motor tension at times, but not at the time of the evaluation. Id. He indicated social situations could contribute to Plaintiff's panic symptoms. Id. He stated Plaintiff had some cleaning obsessions. Id. He rated Plaintiff as having marked restriction of ADLs and extreme difficulty in maintaining social functioning. Id. He confirmed that Plaintiff experienced deficiencies of concentration, persistence, or pace, resulting in frequent failure to complete tasks in a timely manner and repeated episodes of deterioration or decompensation in work or work-like settings that caused her to withdraw from the situation or exacerbated her signs or symptoms. Id. He denied that Plaintiff was completely unable to function independently outside the area of her home due to panic attacks. Id. He indicated Plaintiff was markedly impaired in her abilities to remember locations and work-like procedures, to accept instructions and respond appropriately to criticism from supervisors, and to set realistic goals or make plans independently of others. Tr. at 241. He opined Plaintiff was extremely impaired with respect to the following abilities: to understand and remember short and simple instructions; to understand and remember detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to work in coordination with and proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to maintain socially-appropriate behavior and to adhere to basic standards of neatness and cleanliness; to respond appropriately to changes in the work setting; and to travel in unfamiliar places or use public transportation. Id.
On September 30, 2015, Pinckney Maxwell, M.D., performed excisional hemorrhoidectomy to treat Plaintiff's symptomatic hemorrhoids. Tr. at 579-80.
On October 2, 2015, a computed tomography ("CT") scan of Plaintiff's lumbar spine showed multilevel degenerative disc change with suspected moderate spinal canal stenosis at L4-5 and L5-S1; moderate-to-marked neural foraminal narrowing at L4-5 and L5-S1; and overall minimally-worsened neural foraminal narrowing and spinal canal stenosis since the prior study. Tr. at 689-90.
On October 19, 2015, Plaintiff presented to endocrinologist Nichole Renee Smith, M.D. ("Dr. Smith"), for consultation. Tr. at 758. She reported hair growth on her neck and face, hair loss from her head, excessive fatigue, cold intolerance, difficulty with mood, poor concentration, palpitations, 20-pound weight loss, and difficulty swallowing. Id. Dr. Smith noted mild thyromegaly, tenderness over the thyroid gland, and a mobile lymph node in the superior aspect of the cervical chain. Tr. at 759. She scheduled Plaintiff for thyroid uptake and bone mineral density scans, ordered lab work, and prescribed medication. Tr. at 760.
On October 28, 2015, a second state agency consultant, Holly Hadley, Psy.D. ("Dr. Hadley"), indicated the same findings as Dr. Clausen on the PRT and mental RFC assessment. Compare Tr. at 80-81, with Tr. 95-97 and Tr. at 85-86, with Tr. at 101-02.
Also on October 28, 2015, a scan of Plaintiff's lumbar spine and hips showed normal bone mineral density. Tr. at 688.
On December 15, 2015, Plaintiff's transcutaneous epidural nerve stimulation ("TENS") unit was replaced with a newer unit to address chronic lower back pain. Tr. at 757-58.
Plaintiff returned to Dr. Smith for follow up on February 10, 2016. Tr. at 752. She continued to endorse fatigue, hot flashes, night sweats, palpitations, hair loss on her head, hair growth on her face, and weight fluctuation, but denied difficulty swallowing. Id. Dr. Smith indicated the thyroid uptake and bone mineral density scans were essentially normal. Tr. at 752-53. She assessed subclinical hyperthyroidism, ordered repeat lab work, and titrated up Plaintiff's dose of Methimazole to 7.5 mg. Tr. at 754. She also assessed perimenopause, but noted Plaintiff was not a good candidate for hormone replacement because of her smoking history. Tr. at 755.
On April 13, 2016, x-rays of Plaintiff's thoracic spine showed no significant abnormality. Tr. at 683-84. X-rays of her bilateral knees were unremarkable. Tr. at 684-85.
Plaintiff attended a C&P exam with nurse practitioner Kristy C. Anderson ("NP Anderson"), on April 13, 2016. Tr. at 715-52. NP Anderson considered gastroesophageal reflux disease ("GERD"), scars/disfigurement, history of hernia, and asthma and concluded these impairments had no functional impact on Plaintiff's ability to work. Tr. at 715-22, 749-52. She considered evidence of bilateral patellofemoral syndrome. Tr. at 723. Plaintiff reported constant, daily knee pain that she rated as an eight. Tr. at 724. She indicated she used a brace and cane at times and indicated her sitting, standing, and walking abilities were limited. Tr. at 724. NP Anderson observed bilateral knee flexion and extension to 120/140 degrees. Tr. at 724-25. She indicated Plaintiff's reduced knee ROM caused limited sitting, standing, and walking. Tr. at 725. She stated there was evidence of pain with weight bearing. Id. She noted 5/5 bilateral knee strength with flexion and extension. Tr. at 727-28. She stated Plaintiff had no muscle atrophy and no ankylosis on the left or right side. Id. She noted no joint instability on testing. Tr. at 729-30. She indicated Plaintiff constantly used a cane and brace as a normal mode of locomotion. Tr. at 731, 747. She indicated neither degenerative nor traumatic arthritis had been documented on imaging studies of the knees. Tr. at 732. She wrote "Veteran is unemployed, last worked in 2014 as an RN, could no longer tolerate the strenuous nature of this position, limited walking, standing, sitting." Tr. at 732, 739.
NP Anderson considered evidence of degenerative arthritis of Plaintiff's cervical spine and indicated a diagnosis of cervical DDD and intervertebral disc syndrome causing bilateral upper extremity radiculopathy, status post-anterior cervical discectomy in 2012. Tr. at 733-34. Plaintiff complained of daily, constant neck pain with constant numbness and tingling from the neck to the fingertips of the bilateral arms. Tr. at 734. She reported she was limited to lifting and carrying no greater than five pounds. Id. NP Anderson observed decreased ROM of Plaintiff's cervical spine as follows: 35/45 degrees of forward flexion; 35/45 degrees of extension, 35/45 degrees of left lateral flexion, 70/80 degrees of right lateral rotation, and 70/80 degrees of left lateral rotation. Id. She stated Plaintiff showed evidence of pain with weight bearing. Tr. at 735. She noted Plaintiff's strength to be 5/5 with bilateral elbow flexion and extension, bilateral wrist flexion and extension, bilateral finger flexion, and bilateral finger abduction. Tr. at 736-37. She observed Plaintiff to demonstrate normal reflexes and sensation to light touch in the upper extremities and to have no muscle atrophy. Tr. at 737. She identified signs of radicular pain in Plaintiff's bilateral upper extremities that included mild paresthesia or dysesthesia, mild numbness, and constant, moderate and mild, intermittent pain. Tr. at 738. She noted involvement of Plaintiff's bilateral C5-6 nerve roots. Id. She stated Plaintiff experienced mild, bilateral radiculopathy. Id. She indicated Plaintiff's cervical spine condition limited her to lifting and carrying up to five pounds. Tr. at 740.
NP Anderson considered evidence of degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine with bilateral lower extremity radiculopathy. Tr. at 741-49. Plaintiff endorsed constant, daily back pain that radiated down her bilateral legs, causing numbness and tingling that was constant in the right leg and intermittent in the left. Tr. at 742. She rated her pain as a nine. Id. She reported limited sitting, standing, and walking abilities. Id. NP Anderson observed abnormal ROM of Plaintiff's lumbar spine to 50/90 degrees of forward flexion and 20/30 degrees of extension and bilateral lateral flexion and rotation. Id. She indicated Plaintiff experienced pain with weight bearing. Tr. at 743. She observed tenderness to palpation in Plaintiff's paraspinal muscles. Id. She noted 5/5 strength on manual muscle testing. Tr. at 744-45. She indicated Plaintiff had no muscle atrophy. Tr. at 745. She observed hypoactive DTRs at Plaintiff's bilateral knees and normal DTRs at her bilateral ankles. Id. She indicated Plaintiff had normal sensation to light touch on lower extremity sensory exam. Id. She noted positive bilateral SLR test. Tr. at 746. She stated Plaintiff had radicular pain to the bilateral lower extremities characterized by paresthesia or dysesthesia, numbness, and mild pain that occurred both constantly and intermittently. Id. She indicated sciatic nerve roots at the bilateral L4, L5, S1, S2, and S3 levels were involved. Id. She rated Plaintiff's radiculopathy as mild. Id. She denied ankylosis of the spine. Id.
Genta Dani, M.D., administered a lumbar block and an ESI to Plaintiff's lumbar spine on April 27, 2016. Tr. at 677-83.
On June 10, 2016, Plaintiff reported having sustained a fall two days prior that caused loss of consciousness for approximately 20 seconds. Tr. at 707. She reported a constant headache and painful, blurred right-sided vision. Id. Dr. Pierre noted Plaintiff was walking with a cane. Tr. at 710. She noted good ROM of Plaintiff's lumbar and cervical spine and tenderness to palpation over the left paralumbar and lumbar spine. Id. She ordered a CT scan of Plaintiff's head and a lumbar brace, discontinued Neurontin based on side effects, referred her for an audiology consultation, and prescribed Lyrica for fibromyalgia and Zantac for dysphagia. Tr. at 711. A CT scan of Plaintiff's brain was normal. Tr. at 676-77.
On July 25, 2016, Plaintiff presented to Christopher Dagrossa, D.P.M. ("Dr. Dagrossa"), for leg-length discrepancy. Tr. at 705. Dr. Dagrossa observed Plaintiff to have mild bilateral pes planus and stage II hallux valgus on the left. Id. He indicated normal pedal pulses, negative Homan's sign, and no edema of the feet. Id. He prescribed custom-molded orthotics for pes planus and a possible lift for limb-length discrepancy. Tr. at 706.
On January 5, 2017, Plaintiff complained of chronic lower back pain that radiated down her left leg. Tr. at 701. She requested a wound check. Id. Dr. Pierre noted positive eschar to the medial aspect of Plaintiff's left ankle, minimal edema, no erythema, and minimal tenderness. Tr. at 704. She indicated she would refer Plaintiff for repeat MRI of the lumbar spine and to a neurosurgeon and completed a disability placard form. Id.
On February 11, 2017, an MRI of Plaintiff's lumbar spine showed stable mild-to-moderate degenerative changes of the lower lumbar spine, predominantly involving L4-5 and L5-S1 with no significant progression from October 19, 2012. Tr. at 675. It further showed extensive multilevel bilateral facet arthropathy throughout the lumbar spine. Id.
On August 24, 2017, Plaintiff complained of chronic back and left leg pain. Tr. at 691. She indicated 60% of her pain was in her left leg and 40% was in her back. Id. She reported using shoes inserts and a cane. Id. John A. Glaser, M.D. ("Dr. Glaser"), described Plaintiff as pleasant, cooperative, alert, oriented, and showing appropriate affect. Id. He noted Plaintiff demonstrated antalgic gait and was using a cane. Id. Plaintiff endorsed decreased sensation to light touch throughout the entire left lower extremity. Id. Dr. Glaser found no focal strength deficit, but noted trace reflexes in Plaintiff's lower extremities. Id. He explained to Plaintiff that she was unlikely to benefit from surgery and that he could offer no additional treatment. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she obtained a bachelor's degree in nursing and had pursued additional education toward a degree as a nurse practitioner in 2010. Tr. at 54-55. She described pain in her cervical, thoracic, and lumbar spine and hips. Tr. at 55-56. She testified to a history of surgical repair to her cervical spine, with residuals causing migraine headaches, neuropathy in both arms, and weakened grip. Tr. at 56. She said she had herniated discs in her lower back and spinal stenosis that caused difficulty changing positions and moving left to right, decreased motor skills, bone-on-bone rubbing, balance issues requiring use of a cane, and inability to stand or sit for long periods. Tr. at 58. She stated Dr. Pierre prescribed her cane. Id. She reported frequent falls. Id. She stated restrictive lung disease caused breathing issues triggered by smells or moving around too quickly. Id. She said she had hip displacement associated with scoliosis and leg-length discrepancy that was not corrected by a heel lift. Tr. at 55-56. Plaintiff described patellofemoral pain syndrome that prevented her from running, walking far, stooping, kneeling, bending, and climbing stairs. Tr. at 57. She reported her back issues had worsened since her May 2013 hearing and surgery was not recommended to treat her degenerative arthritis. Id.
Plaintiff testified her mental impairments and symptoms included PTSD, major depressive disorder, fear of leaving her house, panic attacks, anxiety, and inability to do things she used to be able to do without fear. Id. She indicated she had been diagnosed with PTSD and major depressive disorder in January 2001. Id. She said some of her medications became ineffective over time. Id. She described PTSD as worsening since her prior hearing, noting she had two hospitalizations for homicidal and suicidal ideations in December to January 2015. Tr. at 57-58.
Plaintiff indicated she could lift a half gallon of milk and her doctor limited her to lifting no more than five pounds. Tr. at 58. She estimated being able to sit for 20 to 30 minutes before feeling cramping, burning pain through her legs and needing to be helped up due to stiffness. Tr. at 58-59. She estimated being able to stand ten minutes while leaning on something before feeling burning in her low back that caused her arms to feel heavy. Tr. at 59. She said in 2013, she could stand for 20 to 30 minutes and sit for 30 to 40 minutes and did not need help getting up from sitting. Id. She denied being able to climb ladders and said she could climb stairs with assistance. Id. She described having balance problems and falling three times a month, with additional incidents in which she slipped and braced herself prior to falling. She described difficulty stooping and kneeling and denied being able to crouch or crawl. Tr. at 59-60. She denied being able to use her hands for extended activities like writing without experiencing cramps or numbness stemming from her neck. Tr. at 60. She stated her lung disorder was aggravated by perfumes, strong smells, moving too quickly, rising from one position, becoming winded or out of breath, scented soaps, fried foods, cold temperatures, and extreme heat. Id. Plaintiff explained PTSD and depression were triggered by multiple incidents, including being raped by four males at age 14 and by a sergeant when she served in the military. Tr. at 60-61. She described flashbacks and panic attacks caused by louds sounds in strange places, being alone, or being around unfamiliar people. Tr. at 61. Plaintiff testified she was unable to perform her PRW as a nurse due to trouble with gripping, difficulty standing for long periods, inability to lift people, inability to stoop to talk to patients, and difficulty opening medication packages. Id. She described depressive symptoms that included decreased appetite, sometimes going days without eating or bathing, staying in bed, and not leaving the house on many days. Tr. at 62. Plaintiff said she lived with her husband, and her daughter stayed with them part-time. Id. She stated on a typical day, she alternated between her bed and the sofa and watched television. Id. She said her husband and daughter performed the household chores, which made her feel worthless and useless. Tr. at 62-63. She explained one of her hospitalizations occurred around Christmas, when she had two houses, could barely afford food, and felt that her family would be better off without her. Tr. at 63. She noted she lost both homes, both cars, and her retirement. Id. She said her husband worked third shift when not taking care of her and did not leave the house often because she could not be left alone for long. Id. She said her husband formerly worked full time as a police officer, but left his job to care for her. Id. Plaintiff said she did not function well around people and groups and tried to avoid them. Tr. at 63-64. She acknowledged that her son played football at the University of South Carolina. Tr. at 64. She said she had attended a game to watch him play, but had to leave after experiencing paranoia when others touched and attempted to speak to her. Tr. at 64.
Plaintiff testified her military disability rating had changed from her prior hearing to 100% permanent and total disability with individual unemployability. Id. She described trouble remembering, but indicated her family helped her to overcome her confusion and anger. Id. She noted her medications caused memory loss, dizziness, hot flashes, weight loss, weight gain, and fatigue. Id. She said she was on Wellbutrin for six years, which worked well until suddenly causing suicidal ideations. Tr. at 65. She said her doctor had subsequently prescribed other medications that caused her to sleep, feel more depressed, and have no feelings. Id. She indicated she was continuing to work with her doctor to find an effective medication. Id.
The ALJ followed up on Plaintiff's hospitalization in January 2014 for an overdose of sleeping medication, and Plaintiff described a second hospitalization in 2014, but then corrected to say that it may have just been one hospitalization that she thought were two. Tr. at 66.
The ALJ asked when Plaintiff was rated as 100% unemployable, and she responded in May 2014. Tr. at 66-67. The ALJ noted a September 2015 rating by the VA of 80% disability that Plaintiff did not recall seeing. Tr. at 67.
Plaintiff testified her doctor advised against lumbar surgery based on her poor recovery from neck surgery, indicating a 50% chance her pain would improve and a 50% chance it would worsen. Tr. at 67-68. She said she used a heel lift and orthotics after her leg-length discrepancy was diagnosed in 2011, but she continued to feel pain. Tr. at 68-69. She testified her PTSD worsened after she lost her job and home and initiated therapy. Tr. at 69. She indicated she had suppressed her memories while working from 2005 to 2011. Tr. at 69-70. She indicated she lost her last job at the Detention Center in May 2011, after her nursing license was restricted as a result of her taking prescribed narcotic medications to get through 12-hour shifts. Tr. at 70.
b. Vocational Expert Testimony
Vocational Expert ("VE") Arthur F. Schmitt, Ph.D., reviewed the record and testified at the hearing. Tr. at 71-74. The VE categorized Plaintiff's PRW as a licensed practical nurse as requiring medium exertion and skilled, with a specific vocational preparation ("SVP") of 7, Dictionary of Occupational Titles ("DOT") number 075.364-010. Tr. at 71-72. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work; could occasionally climb ramps and stairs, stoop, kneel, crouch, crawl, and reach overhead with the bilateral upper extremities; could never climb ladders or be exposed to fumes, odors, dust, gases, poor ventilation; and should never interact with the public. Tr. at 72. The VE testified that the hypothetical individual could not perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs the hypothetical person could perform. Id. The VE identified the following light, unskilled positions: (1) assembler, SVP of 2, DOT number 706.684-022, with 193,000 positions nationally and 1,420 statewide; (2) storage facility clerk, SVP of 2, DOT number 295.367-026, with 416,000 positions nationally and 4,000 statewide, but reduced by 50% due to the prohibition of public interaction; and (3) coupon redemption clerk, DOT number 290.477-010, with 14,700 positions nationally and 170 statewide, but reduced by 50% due to the prohibition of public interaction. Tr. at 72-73. The VE stated the person would be unemployable if she had a substantial loss of ability to respond appropriately to supervision and coworkers or had a significant (defined as less than 50%) interference with persistence and pace. Tr. at 73-74.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2016.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of May 11, 2011 through her date last insured of December 31, 2016 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, and posttraumatic stress disorder (PTSD) with anxiety and depression (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant 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 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that she can no more than occasionally stoop, kneel, crouch, crawl, and climb ramps/stairs. The claimant must not climb ladders/ropes/scaffolds. She is limited to occasional overhead reaching with the bilateral upper extremities. The claimant must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. She is limited to work with no ongoing public interaction.
6. Through the date last insured, the claimant was unable to perform past relevant work (20 CFR 404.1565).
7. The claimant was born on January 30, 1978 and was 38 years old, which is defined as a younger individual age 18-49, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).Tr. at 14-25. II. Discussion
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not been under a disability, as defined in the Social Security Act, at any time from May 11, 2011, the alleged onset date, through December 31, 2016, the date last insured (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to properly evaluate the opinion evidence of record;
2) the ALJ did not adequately consider Plaintiff's subjective allegations; and
3) the ALJ did not comply with the provisions of SSR 96-8p in explaining the RFC assessment.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Opinion Evidence
a. VA Rating Decision
The record contains a letter from the Department of Veterans Affairs ("VA") dated April 27, 2015, awarding Plaintiff compensation based on individual unemployability, effective December 17, 2014. Tr. at 186. It states entitlement to the benefit was granted because she was "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." Id. It indicates and explains impairment ratings of 10% for GERD, 10% for degenerative arthritis of the cervical spine, 30% for asthma/reactive airway disease, 10% for patellofemoral pain syndrome of the left knee, 10% for disc protrusions and endplate changes of the thoracic spine with DDD and spondylosis of the lumbar spine, 10% for patellofemoral pain syndrome of the right knee, 20% for radiculopathy of the right upper extremity, and 20% for radiculopathy of the left upper extremity. Tr. at 187-90. The VA provided no impairment rating for PTSD because "[t]he evidence d[id] not show a confirmed diagnosis of posttraumatic stress disorder which would permit a finding of service connection." Tr. at 190.
A second letter dated April 30, 2015, reflects a combined service-connected disability evaluation of 80% and reflects that Plaintiff was "being paid at the 100 percent rate" because she was "unemployable due to [her] service-connected disabilities" and "considered to be totally and permanently disabled due to [her] service-connected disabilities." Tr. at 183-84.
A third letter dated September 16, 2015, indicates a combined service-connected evaluation of 90% and indicates Plaintiff continued to be considered totally and permanently disabled due to her service-connected disabilities. Tr. at 182. It does not indicate the reason for the increased impairment rating over that specified in the prior decision. See id.
Plaintiff argues the ALJ failed to properly consider the VA's finding of disability. [ECF No. 18 at 24-28]. The Commissioner maintain the ALJ considered the VA rating decision in accordance with the Fourth Circuit's holding in Bird v. Comm'r of Soc. Sec., 699 F.3d 337 (4th Cir. 2012), and concluded the VA rating decision was inconsistent with the medical records during the relevant period. [ECF No. 23 at 16-18].
Pursuant to SSR 06-3p, 2006 WL 2329939, at *6, an ALJ is "to evaluate all the evidence in the case record that may have a bearing on [his] determination or decision of disability, including decisions by other governmental and nongovernmental agencies. The regulations applicable to the Social Security Administration ("SSA") provide:
The SSA rescinded SSR 06-3p, in addition to SSRs 96-2p and 96-5p on March 27, 2017. Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 2017 WL 3928298 (Mar. 27, 2017). However, the rescission is only "effective for claims filed on or after March 27, 2017." Id. at *1. Because Plaintiff's claim was filed on May 21, 2015, the ALJ was required to comply with the provisions of SSR 06-3p.
[A] decision by any nongovernmental agency or any governmental agency about whether you are disabled or blind is based on its rule and is not our decision about whether you are disabled or blind. We must make a disability or blindness determination based on social security law. Therefore, a determination made by another agency (e.g., Workers Compensation, the Department of Veterans Affairs, or an insurance company) that you are disabled or blind is not binding on us.20 C.F.R. § 404.1504 However, "the adjudicator should explain the consideration given to these decisions in the notice of decision." SSR 06-3p, 2006 WL 2329939, at *6
In Bird, 699 F.3d at 343, the court acknowledged similarities between disability determination processes used by the VA and the SSA, noting "both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability;" [b]oth programs evaluate a claimant's ability to perform full-time work in the national economy on a sustained and continuing basis; both focus on analyzing a claimant's functional limitations; and both require claimants to present extensive medical documentation in support of their claims." It found that "[b]ecause the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency." Id. The court directed that "in making a disability determination, the SSA must give substantial weight to a VA disability rating," and may only allocate less than substantial weight "when the record . . . clearly demonstrates that such a deviation is appropriate." Id.
"[I]n order to demonstrate that it is 'appropriate' to accord less than 'substantial weight'" to a decision from a program with a closely related purpose and evaluation methodology, the "ALJ must give 'persuasive, specific, valid, reasons for doing so that are supported by the record.'" Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018) (citing McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (describing standard for VA decisions); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (per curium) (explaining that ALJs need not give great weight to VA disability determinations "if they adequately explain the valid reasons for not doing so")). "[T]o satisfy SSR 06-3p and Bird, an ALJ must meaningfully articulate how substantial evidence supports a conclusion that the disability determination of another agency is entitled to limited or no weight. Robinson v. Berryhill, C/A No. 1:16-3628-DCN, 2018 WL 746540, at *3 (D.S.C. Feb. 7, 2018) (citing Bird, 699 F.3d at 343; Adams v. Colvin, 2016 WL 697138, at *4 (E.D.N.C. Feb. 22, 2016); Hildreth v. Colvin, 2015 WL 5577430, at *4 (M.D.N.C. Sept. 22, 2015); Allen v. Colvin, 2013 WL 3983984 (E.D.N.C. Aug. 1, 2013)).
The ALJ stated he assigned "little weight" to the VA's rating decision because "[t]he disability determination processes utilized by the Department of Veterans Affairs and the Social Security Administration are fundamentally different." Tr. at 22. He noted the VA "does not make a function-by-function assessment of the individual's capabilities (i.e., determine the claimant's residual functional capacity) or determine whether the claimant is able to perform either his past relevant work or other work that exists in significant numbers in the national economy as required by the Regulations." Id. He further stated the VA rating was "not consistent with the medical evidence." Id.
The ALJ offered the conclusory statement that the VA decision was "not consistent with the medical evidence," without explaining how the two were inconsistent. In the absence of a meaningful comparison between the medical evidence and the findings in the VA rating decision, the court is left to guess how they conflict.
Furthermore, the ALJ's claim that the VA does not determine whether the claimant is able to perform PRW or other work in the national economy appears to conflict with the regulations applicable to the VA. These regulations provide the rating agency is to assign an unemployability rating "when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a).
Given the foregoing, the undersigned recommends the court find the ALJ failed to "meaningfully articulate how substantial evidence" supported his decision to assign little weight to the VA decision, as required by Bird, Woods, and SSR 06-3p.
b. Dr. Stevens's Opinion
Plaintiff argues the ALJ erred in failing to discuss the opinion Dr. Stevens provided based on the C&P exam. [ECF No. 18 at 28]. The Commissioner notes the ALJ discussed Dr. Stevens's examination notes, but maintains Dr. Stevens declined to identify specific mental limitations that were imposed by Plaintiff's impairments. [ECF No. 23 at 17-18].
The rules in 20 C.F.R. § 404.1527 apply to claims filed prior to March 27, 2017. Pursuant to 20 C.F.R. § 404.1527(a)(1), "[m]edical opinions are statements from acceptable medical sources that reflect judgment about the nature and severity of [the claimant's] impairments, including [her] symptoms, diagnosis and prognosis, what [she] can still do despite her impairment(s), and [her] physical or mental restrictions." ALJs are required to "evaluate every medical opinion [they] receive." 20 C.F.R. § 404.1527(c).
Contrary to the Commissioner's argument, Dr. Stevens provided a medical opinion that Plaintiff's mental impairments caused occupational and social impairment with reduced reliability and productivity, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Tr. at 435, 443. A review of the ALJ's decision shows he failed to consider Dr. Stevens's opinion. His statement that "the record does not contain any opinions from treating or examining physicians indicating that the claimant is disabled or has limitations greater than determined in the residual functional capacity above" ignores Dr. Stevens's medical opinion. See Tr. at 21. Thus, the ALJ did not comply with the requirement in 20 C.F.R. § 404.1527(c) that he evaluate every medical opinion.
c. Dr. Simons's Opinion
Dr. Simons noted Plaintiff was cognitively "capable of highly skilled work," but "her psychiatric problems interfere[d] significantly with attention/concentration as well as persistence and pace." Tr. at 533. He stated Plaintiff "probably would not be able to handle the requirements of even unskilled work because of her problems in this area." Id.
Plaintiff argues the ALJ failed to adequately evaluate Dr. Simons's opinion given the examination findings that supported it. [ECF No. 18 at 28-30]. She maintains the ALJ erred in finding Dr. Simons's opinion to be contradicted by the "record as a whole" because it was not inconsistent with the opinions or findings of any other treating or examining medical provider. Id. at 30-31.
The Commissioner argues the ALJ gave less weight to Dr. Simons's opinion because it was inconsistent with his examination findings and the longitudinal record. [ECF No. 23 at 19-20]. He maintains Dr. Simons's exam showed Plaintiff to have no problem with concentration and indicated her symptoms were ameliorated with medication. Id. at 20. He claims Plaintiff sought only sporadic treatment, receiving no significant mental health treatment between April 2011 and January 2014 or after 2015. Id. at 21. He contends Dr. Simons's opinion was inconsistent with Plaintiff's ability to participate in online college courses and conflicted with the state agency consultants' opinions. Id.
Unless the ALJ gives controlling weight to a treating source's medical opinion, he is to weigh all the medical opinions based on the following factors, as applicable: (1) examining relationship; (2) treatment relationship, to include length of treatment relationship and frequency of examination, as well as nature and extent of treatment relationship; (3) supportability; (4) consistency; (5) specialization; and (6) any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c). "The more a medical source presents evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion." 20 C.F.R. § 404.1527(c)(3). "[T]he more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion." 20 C.F.R. § 404.1527(c)(4).
The ALJ gave "little weight" to Dr. Simons's opinion, "as it appears to be based on the claimant's subjective complaints." Tr. at 22. He further noted "the extreme limitation [was] inconsistent with Dr. Simons's own mental status examination, which indicated the claimant showed poor performance on one test of concentration, but demonstrated no difficulties with memory, perception, orientation, or intellectual abilities." Id. He further found Dr. Simons's opinion was "inconsistent with the record as a whole, which shows generally sporadic and conservative treatment and mild symptoms." Id.
In assigning little weight to Dr. Simons's opinion, the ALJ ignored some of Dr. Simons's observations, as well as other consistent medical opinions of record. The ALJ failed to note that Plaintiff cried throughout the evaluation and minimized Dr. Simons's objective findings, indicating Plaintiff "showed poor performance on one test of concentration" when Plaintiff actually erred on both serial seven and serial three testing. See Tr. at 532. As discussed above, Dr. Stephens indicated similar restrictions to Plaintiff's ability to work. Compare 435, 443, with Tr. at 533. While the ALJ discussed Dr. Glenn's indications that Plaintiff "was medically stable and able to do the online coursework she had planned," Tr. at 21, he failed to address Dr. Glenn's September 26, 2015 opinion, in which he indicated Plaintiff was moderately and extremely impaired as to most work-related abilities. See Tr. at 240-41. This is particularly concerning given Dr. Glenn's status as Plaintiff's only treating psychiatrist. In light of the foregoing, substantial evidence does not support the ALJ's rejection of Dr. Simons's opinion as unsupported and inconsistent with the other evidence of record.
Dr. Glenn's opinion was erroneously filed in the Disability Related Development section instead of the Medical Records section of the file. See Tr. at 26-29 (list of exhibits attached to ALJ's decision). It appears the ALJ neglected to consider the opinion because it was filed in the wrong section. The filing error does not excuse the ALJ's omission, as he was required to "consider all evidence in [the claimant's] case record" in making the disability decision. See 20 C.F.R. § 404.1520(a)(3).
2. Subjective Allegations and RFC Assessment
Plaintiff argues the ALJ did not comply with the provisions of SSR 16-3p to the extent that he cited her conservative and infrequent treatment in rejecting her subjective allegations without considering her reasons for failing to obtain additional treatment. [ECF No. 18 at 32-34]. She maintains the ALJ failed to consider her ability to perform relevant functions in accordance with SSR 96-8p and the Fourth Circuit's decision in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2016). Id. at 14-16. She alleges the ALJ did not adequately account for moderate limitation in interacting with others and use of a cane. Id. at 16-22.
The Commissioner argues the ALJ appropriately considered Plaintiff's subjective complaints and pointed to evidence that showed she was not as limited as she alleged. [ECF No. 23 at 22-25]. He maintains the ALJ's RFC assessment is supported by substantial evidence and the record supports no additional limitations as to interacting with others and use of a cane. Id. at 11-16.
The RFC assessment should consider all the relevant evidence and account for all of the claimant's medically-determinable impairments. See 20 C.F.R. § 404.1545(a). "'An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.'" Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). The RFC assessment must include a narrative discussion describing how all the relevant evidence supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). "Thus, a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion." Thomas v. Berryhil, 916 F.3d 307, 311 (4th Cir. 2019).
If the claimant's impairments could reasonably produce the symptoms she alleges, the ALJ "must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities." Lewis, 858 F.3d at 866 (citing 20 C.F.R. § 404.1529(c)). He is required to "evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence." SSR 16-3p, 2016 WL 1119029, at *6. "Other evidence that [the ALJ should] consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in [the] regulations." Id. at *5.
The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. SSR 16-3p, 2016 WL 1119029, at *7. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
The ALJ found Plaintiff's medically-determinable impairments could reasonably be expected to cause the symptoms she alleged, but that her "statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record." Tr. at 21. He explained:
The medical evidence of record does not indicate the claimant has received the type or frequency of treatment one would expect of a totally disabled individual, nor does it support a finding that the combination of her impairments is as severe as to preclude all work in the national economy.Tr. at 21. He noted the absence of an opinion from a treating medical provider as to Plaintiff's abilities and limitations. Id. He considered Dr. Akoury's exam findings and gave significant weight to the state agency consultants' opinions. Tr. at 21-22.
Despite its volume, the record shows relatively infrequent and conservative treatment for the claimant's allegedly disabling impairments during the relevant period, with significant gaps in treatment. In February and July 2014, the claimant's psychiatrist at the VAMC wrote a letter in which he stated the claimant was medically stable and able to do the online coursework she had planned (Exhibits B3F/72; B4F/41).
The undersigned is not persuaded by Plaintiff's argument that the ALJ erred in failing to consider that her symptoms contributed to her infrequent treatment, as Plaintiff had identified insufficient evidence to support this argument. However, the undersigned accepts Plaintiff's broader argument that the ALJ failed to properly consider her subjective allegations as to symptoms. The ALJ's explanation for his rejection of Plaintiff's allegations reflects his erroneous finding that the record did not contain an opinion from a treating or examining medical provider as to her limitations. It also reflects inadequate consideration of the VA rating decision and Dr. Simons's opinion. These errors led the ALJ to assess an RFC that did not consider all the relevant evidence in accordance with 20 C.F.R. § 404.1545(a). Consequently, the ALJ's decisions lacks a narrative discussion describing how all the relevant evidence supports the limitations he included in the RFC assessment. SSR 96-8p, 1996 WL 374184 at *7 (1996).
The ALJs errors in evaluating the medical opinions affected his assessment of Plaintiff's degree of functional limitation not only with respect to interacting with others, but in all four areas of mental functioning. He also does not appear to have adequately accounted for Drs. Clausen's and Hadley's indications that Plaintiff was moderately limited in her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes and "would work best in an environment with low social stimulation." See Tr. at 85-86, 101-02. Therefore, his inclusion in the RFC assessment of a restriction to "work with no ongoing public interaction" does not adequately address Plaintiff's mental limitations, without further explanation.
Although the ALJ cited mixed evidence as to Plaintiff's need for a cane, Tr. at 18-22, he failed to explain his reasons for declining to include a provision for use of a cane in the RFC assessment. The record reflects no prescription for a cane, but Dr. Zamora and NP Anderson indicated Plaintiff constantly used a cane as a normal mode of locomotion. Tr. at 628, 731, 747. Pursuant to SSR 96-9p, 1996 WL 374185, at *7, "[t]o find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distances and terrain; and any other relevant information)." The ALJ was not required to find a cane medically-necessary, but was required to resolve the conflicting evidence and explain his reasons for declining to include use of a cane in the RFC assessment. See SSR 16-3p, 2016 WL 1119029, at *7; Mascio, 780 F.3d at 636. Because he failed to do so, his decision lacks the required logical bridge between the evidence and his conclusion. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016).
In light of the foregoing, the undersigned recommends the court find substantial evidence does not support the ALJ's evaluation of Plaintiff's subjective allegations and his RFC assessment. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
Given Plaintiff's counsel's flagrant disregard for the court's deadlines in this and other cases, the undersigned further recommends the court reduce any attorney fees payable to him. See ECF Nos. 16 at 4, 19.
IT IS SO RECOMMENDED. April 16, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).