Opinion
C/A No. 0:18-1999-JMC-PJG
07-30-2019
Catherine Ghidella, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Catherine Ghidella, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and remanded.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In June 2014, Ghidella applied for DIB, alleging disability beginning June 1, 2011. Ghidella's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A video hearing was held on January 4, 2017, at which Ghidella appeared and testified and was represented by Natasha Hanna, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on May 23, 2017 finding that Ghidella was not disabled from June 1, 2011 through the date last insured of September 30, 2016. (Tr. 16-25.)
Ghidella was born in 1960 and was fifty-five years old on her date last insured. She has a high school education and past relevant work experience as an office manager. (Tr. 239.) Ghidella alleged disability due to degenerative disc disease, sciatica, spinal stenosis, and arthritis. (Tr. 238.)
In applying the five-step sequential process, the ALJ found that Ghidella had not engaged in substantial gainful activity since her alleged onset date of June 1, 2011 through her date last insured of September 30, 2016. The ALJ also determined that, through the date last insured, Ghidella's cervical and lumbar degenerative disc disease and fibromyalgia syndrome was a severe combination of impairments. However, the ALJ found that, through the date last insured, Ghidella did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that, through the date last insured, Ghidella retained the residual functional capacity to
perform sedentary[] work as defined in 20 CFR 404.1567(a) except that she can frequently push/pull with her bilateral upper extremities within the weight restrictions of sedentary work. She cannot climb ladders, ropes, or scaffolds. The claimant can perform other postural activities occasionally. She can have no direct exposure to vibrations. The claimant can occasionally reach overhead bilaterally and frequently reach in all other directions bilaterally.(Tr. 21.) The ALJ found that, through the date last insured, Ghidella was capable of performing past relevant work as an office manager, and that this work did not require the performance of work-related activities precluded by Ghidella's residual functional capacity. Accordingly, the ALJ found that Ghidella was not disabled from June 1, 2011 through the date last insured of September 30, 2016.
The Appeals Council denied Ghidella's request for review on May 16, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Ghidella raises the following issues for this judicial review:
I. The ALJ erred in failing to properly evaluate whether the Plaintiff's degenerative disc disease and stenosis meets and/or equals the criteria of Listing 1.04A[.](Pl.'s Br., ECF No. 13.)
II. The ALJ failed to properly assess medical source opinion evidence[.]
III. The ALJ did not explain his findings regarding the Plaintiff's residual functional capacity, as required by Social Security Ruling 96-8p.
IV. The ALJ failed to properly evaluate subjective symptomology[.]
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claims was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Ghidella's application for benefits was filed, unless otherwise specified.
As indicated above, Ghidella raises several issues for this judicial review. For the reasons that follow, upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to recommend that this matter be remanded for further consideration and analysis by the ALJ. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence as the decision provides very little actual analysis as to why the ALJ discounted the opinion from Dr. William Gammon, a medical source. The ALJ also fails to acknowledge many of the limitations included in the opinion and the objective support offered by Dr. Gammon. Similarly, the ALJ discounts Ghidella's subjective complaints with very little analysis. Ghidella has directed the court to objective medical evidence that arguably does not support a finding that Ghidella meets a Listing, but could support her subject complaints of pain. These issues combined prevent the court from conducting a meaningful judicial review of the ALJ's decision.
The law applicable to Ghidella's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590).
Additionally, SSR 96-2p provides that an ALJ's decision "contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5. Moreover, ALJs are instructed to apply the above factors—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions, including those from consultative or one-time examiners. 20 C.F.R. § 404.1527(c). Importantly, more weight is generally given to the opinions of an examining source than a non-examining one. Id. Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id.
Upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the entirety of the ALJ's evaluation of Dr. William Gammon's opinion reads as follows:
Little weight is accorded to the medical source statement by William Gammon, M.D., wherein he reports that the claimant is limited to only lifting/carrying 8 pounds for less than 1 hour a day. His statement is not remotely supported by the objective medical evidence of record, is cursory and contrary to the assessment by the claimant's neurosurgeon who assessed her as having no focal deficits (Exhibits 15F, 22F, 33F).(Tr. 24.)
Ghidella argues that the ALJ erred in failing to acknowledge all of the limitations opined by Dr. Gammon as well as the objective evidence cited by Dr. Gammon as supporting his opinion. As pointed out by Ghidella, Dr. Gammon also opined that Ghidella
could only stand for 15 minutes without interruption and sit for 40 minutes without interruption. She should never climb, balance, stoop, crouch, or crawl. She could occasionally kneel. Pain and weakness from nerve impingement affected her ability to reach, handle, feel, and push/pull. She should not operate machinery due to sedation and balance problems attributed to her medications (Tr. 752-753).(Pl.'s Br. at 24, ECF No. 13 at 24.) Dr. Gammon also referenced cervical spine MRI findings documenting "an impinged nerve and C5 numbness bilaterally with tactile stimulation." (Id.) Thus, it is unclear whether the ALJ even considered the additional opinions and support offered by Dr. Gammon. While the Commissioner provides extensive argument and possible factual support for the ALJ's conclusions, the ALJ's decision lacks this analysis. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding meaningful review was precluded where an ALJ gave an opinion limited weight because "the objective evidence or the claimant's treatment history did not support the consultative examiner's findings" but did not specify what objective evidence or treatment history he was referring to). Further, Ghidella has directed the court to medical evidence and clinical findings that arguably support Dr. Gammon's opinion. (See Pl.'s Br. at 24-25, ECF No. 13 at 24-25.) Moreover, further consideration of this opinion evidence could impact the ALJ's residual functional capacity assessment as Dr. Gammon's opinions that the ALJ failed to discuss are more restrictive than the limitations included in Ghidella's residual functional capacity.
Further rendering review difficult in this matter is the ALJ's evaluation of Ghidella's subjective complaints of pain. With regard to subjective complaints, the United States Court of Appeals for the Fourth Circuit has stated that "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The first step requires there to "be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged." Id. (internal quotation omitted). During the second step the ALJ must expressly consider "the intensity and persistence of the claimant's [symptoms] and the extent to which it affects her ability to work." Id. In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10. ALJs are further instructed to
Effective March 28, 2016, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029. See 2016 WL 1237954 (correcting the effective date of SSR 16-3p to read March 28, 2016). The ALJ's decision in this matter post-dates the effective date of SSR 16-3p.
limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities . . . .Id., at
Further, "claims of disabling pain may not be rejected 'solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her pain." Craig, 76 F.3d at 595 (citations omitted) (alteration in original). "This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work." Id. A claimant's subjective complaints "need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges she suffers." Id. The social security regulations inform claimants that in evaluating subjective complaints, the Commissioner will consider the following relevant factors:
(i) Your daily activities;20 C.F.R. § 404.1529(c)(3).
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.
In considering Ghidella's subjective complaints, the ALJ summarized Ghidella's testimony and then stated that "the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements . . . concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (Tr. 22.) The ALJ then proceeded to summarize Ghidella's treatment records; however, it is unclear which aspects of her records the ALJ found to be inconsistent with Ghidella's subjective complaints and there is very little analysis offered by the ALJ. See SSR 16-3p, 2017 WL 5180304, at *10 (stating that the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms"). The only specific reason that appears to have been offered by the ALJ in discounting Ghidella's subjective complaints was that her activities of daily living were inconsistent with her allegations of such significant functional limitations. (Tr. 23.) While daily activities are a factor that the ALJs are instructed to consider, it is one factor among several. See 20 C.F.R. § 404.1529(c)(3). Accordingly, the court is also unable to conduct meaningful review of this aspect of the ALJ's decision.
In summary, upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision to discount the above opinion is supported by substantial evidence. See 20 C.F.R. § 404.1527(c); cf. Mastro, 270 F.3d at 178 (stating that "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight") (internal quotation marks and citation omitted). Even considering the ALJ's decision in its entirety, it is unclear that the ALJ considered all of Dr. Gammon's opinion and all of the evidence in discounting it. Similarly, it is unclear whether the ALJ considered all the applicable factors in evaluating Ghidella's subjective complaints. Therefore, the court is constrained to agree with Ghidella that the ALJ's conclusory evaluation of this opinion evidence as well as Ghidella's subjective complaints leaves the court guessing as to whether this evidence was fully considered and as to the support for the reasons this evidence was discounted. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Moreover, Ghidella has directed the court to records that arguably support this evidence, and it is unclear whether the ALJ considered all of this evidence. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("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.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence as well as Ghidella's subjective complaints.
Accordingly, the court expresses no opinion as to whether further consideration of this evidence by the ALJ should necessarily lead to a finding that the evidence is entitled to additional weight or that Ghidella is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on these points. Moreover, although Ghidella argues that this matter should be remanded for an award of benefits based on allegations that there is evidence in the record that could support a determination that she met Listing 1.04A. The court finds that contrary to Ghidella's assertions, she has failed to point to sufficient evidence to conclusively demonstrate she met that Listing and therefore, she has failed to demonstrate that remand for an award of benefits is warranted. She may, however, present these arguments on remand for the ALJ to consider in the first instance.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Ghidella's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Ghidella may present her remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. July 30, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).