Opinion
Civil Action No: 8:19-cv-01631-BHH-JDA
02-28-2020
Brenda Kay Evans, Plaintiff, v. Andrew Saul, Commissioner Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In February 2015, Plaintiff filed an application for DIB, alleging an onset of disability date of December 15, 2014. [R. 173-79.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 57-78, 83-87, 142-45.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on May 1, 2018, ALJ Tammy Georgian conducted a de novo video hearing on Plaintiff's claim. [R. 25-47.]
The ALJ issued a decision on August 15, 2018, finding Plaintiff not disabled under the Social Security Act (the "Act"). [R. 6-24.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity since December 15, 2014, the alleged onset date. [R. 11, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of obesity and osteoarthritis of the left knee. [R. 11, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of gastro esophageal reflux disease, hypertension, hyperlipidemia, and migraines. [R. 11.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 12, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following limitations: frequently sit, stand, and walk; occasionally climb ramps/stairs but never ladders, ropes, and scaffolds; frequently stoop; and occasionally kneel, crouch, and crawl.[R. 13, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was capable of performing her past relevant work as a cashier-checker. [R. 17, Finding 6]. Alternatively, upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), the ALJ also found that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 18.] Thus, the ALJ found that Plaintiff had not been under a disability as defined in the Act from December 15, 2014, through the date of the decision. [R. 19, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 1-5.] Plaintiff filed this action for judicial review on June 6, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision should be reversed for an award of benefits. [Doc. 14.] Specifically, Plaintiff contends that the ALJ failed to properly weigh the opinion of Plaintiff's treating physician [id. at 8-9, 12-14], improperly discredited Plaintiff's testimony [id. at 9-10, 15-18], and failed to find Plaintiff's migraines to be a severe impairment [id. at 11-12]. Further, Plaintiff argues the ALJ's hypothetical to the VE was flawed because it did not include all of Plaintiff's physical and mental impairments. [Id. at 18-20.]
The Commissioner, on the other hand, contends the ALJ's decision should be affirmed because the record contains substantial evidence supporting the decision. [Doc. 15.] Specifically, the Commissioner contends the ALJ properly weighed the medical opinion evidence [id. at 11-13], properly considered Plaintiff's migraines headaches [id. at 14], and properly evaluated Plaintiff's subjective allegations in accordance with SSR 16-3p [id. at 15-18]. The Commissioner also contends that substantial evidence supports the ALJ's finding that Plaintiff could perform light jobs in the national economy. [Id. at 18-20.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC Analysis
Plaintiff's arguments that the ALJ failed to properly weigh the opinion of her treating physician, improperly discredited her testimony, and posed a flawed hypothetical to the VE all challenge the ALJ's RFC determination. The Administration has provided a definition of RFC and explained what a RFC assessment accomplishes:
RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work related physical and mental activities.
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. . . .SSR 96-8p, 61 Fed. Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545 and 416.945. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. Additionally, the Administration has determined that in assessing RFC, the ALJ
must consider only limitations and restrictions attributable to medically determinable impairments. It is incorrect to find that [a claimant] has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the [claimant] had ever engaged in certain activities in his or her past relevant work (e.g., lifting heavy weights.) Age and body habitus (i.e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the [claimant]'s medically determinable impairment(s) and related symptoms) are not factors in assessing RFC . . . .Id. at 34,476.
To assess a claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477. SSR 96-8p specifically states, "The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id. at 34,478.
The ALJ's RFC Analysis
In determining Plaintiff's RFC, the ALJ summarized Plaintiff's hearing testimony as follows:
At the hearing, the claimant testified that she lives with her disabled husband, and she has 11 grandchildren. The claimant stated that she stands at 5 '8" tall and weighs 250 pounds. The claimant testified that she completed the 10th grade, and she has not received a GED. The claimant testified that she is unable to work due to migraines. The claimant noted that she must take medication and rest in a dark room at the onset of a migraine. The claimant testified that she is not taking a preventative medication; she only takes medication once she develops a headache. The claimant testified that she has arthritis in the knees and hips. The claimant described her knee impairment as "bone rubbing on bone." The claimant stated that her knees ache all the time. The claimant testified that she does not smoke. The claimant testified that she is able to perform household chores, explaining, "do a little and sit down, and do more and sit down." The claimant testified that she watches television and plays games, such as Candy Crush, on her mobile phone. The claimant goes grocery shopping for a few minutes at a time. The claimant visits with friends and family on occasion. The claimant sees two of her grandchildren every day or every other day. The grandchildren, ages are eight and nine, stay at the claimant's home for an hour after school.
The claimant testified that she has migraines three to four times per week, lasting from a couple of hours to all day. The claimant noted that she is in a fog for a few days after a migraine headache. The claimant testified that her headaches have gotten worse. The claimant rated her pain as a six on the pain scale, with medication. Associated symptoms include blurred vision, instability, and uncertainty about her surroundings. The claimant reported no side effects from high blood pressure medication. She rated the pain in her legs and hips as an eight, on the pain scale, on average. The claimant
reported shortness of breath due to a stiff heart muscle, and she noted that she performs housework in 15-minute increments.[R. 13-14.]
Next, the ALJ found that Plaintiff's medically determinable impairments could be expected to cause the alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects of the alleged symptoms during the relevant time period were not entirely consistent with the record evidence. [R. 16.] The ALJ then summarized the medical evidence and explained as follows:
The medical opinion of Dr. Wallace has been given little weight, as the treating physician's opinion is not consistent with the medical evidence of record, including the treatment notes from McLeod Family Medicine Center. On May 20, 2016, the claimant reported severe headaches three times per week (exhibit 12F/47); however, the claimant was prescribed medication for her impairment, which improved her symptoms. See e.g., Exhibits 12F/27, 12F/35 and 12F/39. On October 24, 2016, the claimant's headaches were noted as significantly improved. Exhibit 12F/27. Headaches were not a major complaint again until March 2018. Exhibit 12F/5; see also Exhibit 12F/8, wherein headaches were endorsed in Review of Systems but headaches were not a chief complaint. On March 7, 2018, the claimant presented to Dr. Wallace for a follow-up visit, having last been seen in December 2017. During the March 2018 visit, the claimant stated that her last headache was on Sunday, which kept her in bed for two days. The claimant noted that she has not seen a neurologist recently for her headaches. Exhibits 12F/5. The claimant requested paperwork filled out for migraine headaches associated disability. Exhibit 12F/6. Interestingly, as noted above, the treatment notes from December 13, 2017, indicate that the headaches were not a chief complaint. Exhibit 12F/8. Treatment notes dated September 6, 2017, indicate that the claimant's migraines were better. The claimant reported that she felt well with the exception of having knee pain and hip pain with exercise. The claimant reported decreased physical stamina. She denied headaches, chest pain, and shortness of breath. Exhibit 12F/12. What is more, the most recent treatment notes reference "migraine without aura and without
status migrainosus, not intractable." Exhibit 12F/10. This assessment is generally inconsistent with the medical source statement in Exhibit 13F.
. . . .
Overall, when the record is considered in its entirety, though the claimant has multiple medical impairments, the totality of the evidence does not support the presence of an impairment, or combination thereof, that imposes listing level restrictions or that substantially interferes with the claimant's ability to perform a reduced range of light work activity. The medical evidence of record suggest that the claimant can sustain a greater capacity than she described at the hearing or in her reports to Disability Determinations. Given this evidence, I conclude the claimant has not satisfied her burden to show that she cannot work. I find that neither the severity of her impairments nor the extent of her alleged limitations is supported by the objective medical and other evidence of record. Furthermore, the limitations that do exist are adequately accommodated for in the claimant's residual functional capacity as established above.
The medical evidence of record does not support the claimant's allegations of disability. The claimant's activities of daily living are not as limited as one would expect given her complaints. The record indicates that the claimant is able to perform household chores. The claimant's husband is disabled, which would limit his ability to contribute. The claimant reported that she watches her grandchildren every day after school for one hour. The medical evidence of record, as detailed above, shows significant improvement in the claimant's migraines, and the claimant has not sought treatment from a neurologist for her complaints. The physical examinations have been relatively unremarkable. The claimant has had normal motor strength in the upper and lower extremities, and the sensory examination has been intact. Exhibits 12F/6 and 12F/12. The claimant's edema appears managed with compression stockings. Exhibits 12F/21, 12F/29, 12F/33, 12F/37, and 12F/41.
As for the other opinion evidence, I have considered the opinions of the State agency medical consultants who reviewed the record initially and on reconsideration and found the claimant capable of performing a reduced range of light work. Exhibit 1A and 5A. The doctors' opinions have been accorded partial weight, as the doctors are disability specialists who
reviewed the evidence of record and considered all of the objective facts at the time they rendered their opinion; however, evidence received at the hearing level shows improvement in the claimant's conditions, as described above.[R. 16-17.]
In sum, the above residual functional capacity assessment is supported by the level of care the claimant has received and the results of diagnostic testing and neurological and musculoskeletal assessments and examinations of record as detailed above.
Discussion
Upon review, the Court finds that the ALJ's decision is not sufficiently explained to allow the Court to track the ALJ's reasoning, be assured that all record evidence was considered, and understand how the ALJ resolved conflicts in the evidence. The ALJ assigned weight to three different medical opinions—little weight to a treating physician's opinion and partial weight to two State agency medical consultants. The ALJ assigned little weight to the opinion of the treating physician, Dr. Wallace, because treatment notes from McLeod Family Medicine Center indicated that Plaintiff's migraines had improved and the most recent treatment notes referenced "migraine without aura and without status migrainosus, not intractable," which is inconsistent with Dr. Wallace's RFC questionnaire. [R. 16.] However, given that the ALJ assigned the opinion little weight—as opposed to no weight—the ALJ failed to explain how the RFC accounts for any limitations the ALJ concluded were not inconsistent with medical records. Dr. Wallace's opinion indicated that Plaintiff had migraine headaches three to four times per week, lasting for one to three days. [R. 537.] He stated that headache triggers varied, but included lack of sleep, noise, stress, and strong odors; that bright lights, moving around, and noise made the headaches worse; and that lying in a dark room and sleeping with covered windows made the headaches better. [Id.] He also indicated that Plaintiff's migraines were likely to continue "due to years of debilitating migraine [headaches] with poor response to meds" and that he anticipated Plaintiff would be absent from work more than four times per month because of her headaches. [R. 538-39.] As stated, the ALJ discounted Dr. Wallace's opinion because Plaintiff's headaches had improved. However, the decision fails to address how any improvement would impact the frequency and duration of Plaintiff's migraines. Nor does the decision address how Plaintiff's being exposed to environmental triggers might impact her migraines. Although the ALJ assigned the opinion little weight, the ALJ's RFC determination seemingly accounts for none of Dr. Wallace's opinion because it does not include any discussion of environmental limitations nor does it assess how much time Plaintiff would be absent from work or require breaks. Because the VE testified that missing more than four days of work per month would preclude work and that missing more than three days of work per month is generally unacceptable to employers [R. 46], the ALJ should have provided a discussion regarding how many day of work per month Plaintiff was likely to miss as a result of her migraines, see Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (holding that "[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") (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)) (alterations in original).
Additionally, one of the State agency medical consultants opined that Plaintiff should avoid concentrated exposure to humidity, noise, fumes, odors, dusts, gases, poor ventilation, and hazards [R. 63], and the ALJ gave that opinion partial weight.
Moreover, an ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 82 Fed. Reg. at 49,467. Here, although the ALJ noted that "[w]hen evidentiary inconsistencies exist, reliance on the claimant's testimony as a basis for decision-making is undermined" and that "claimant's activities of daily living are not as limited as one would expect given her complaints," the ALJ failed to explain the inconsistencies she relied on in deciding to ignore Plaintiff's testimony about her knee and hip pain and migraine headaches. Additionally, the ALJ's broad summary of Plaintiff's activities of daily living does not account for Plaintiff's testimony that she can only do housework for ten to fifteen minutes at a time before she has to sit down for ten to fifteen minutes [R. 34, 39]; that even though she shops, it is "just for a few minutes at a time" [R. 34]; and that although her eight- and nine-year-old grandchildren come to her house for about an hour after school, if she is having a migraine, "[her] husband has to watch them, and [she] ha[s] to go in the bedroom and lay down" [R. 36]. Based on the foregoing, the Court cannot find that the ALJ's decision is supported by substantial evidence because the Court is left to guess about how the ALJ arrived at her RFC determination. See Mascio, 780 at 637 (concluding that remand was necessary because the court was left to guess at how the ALJ arrived at the conclusions; Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (internal quotation marks omitted). Although Plaintiff requests that the Court remand this case for an award of benefits, the Court finds that Plaintiff's entitlement to benefits is not wholly established and that this case should be remanded for further consideration by the Commissioner. See Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (remanding for an award of benefits where the individual's entitlement to benefits was "wholly established" on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) ("Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court."); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) ("Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than 'reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A."). The Court is mindful of the length of this process to date, and therefore recommends that the Commissioner be directed to expedite reconsideration of this matter on remand.
Remaining Allegations of Error
Because the Court finds that the ALJ's RFC analysis is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 28, 2020
Greenville, South Carolina