Opinion
Civil Action No. 8:19-cv-02102-MBS-JDA
06-15-2020
Jamison Gregory, Plaintiff, v. Commissioner of Social Security Administration, 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) and 1383(c)(3) 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 to the agency with the direction to award benefits to Plaintiff.
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.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
On February 21, 2013, Plaintiff filed an application for DIB, alleging an onset date of November 5, 2010. [R. 288-90.] Plaintiff subsequently revised his onset of disability date to December 21, 2012. [R. 308.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 189-92, 193-94.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on May 5, 2015, ALJ Jerry W. Peace conducted a de novo hearing on Plaintiff's claim. [R. 49-81.]
In April 2011, Plaintiff had filed applications for DIB and supplemental security income alleging disability beginning November 5, 2010, but these claims were denied in a decision dated December 20, 2012. [R. 112-30.]
The ALJ issued a decision on July 2, 2015, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 163-80.] Plaintiff requested Appeals Council review of the decision and, on September 20, 2016, the Appeals Council granted review, vacated the hearing decision, and remanded the case to the ALJ. [R. 182-83.] The ALJ was directed to give further consideration to Plaintiff's RFC during the entire period at issue and explain with specific reference to record evidence the basis for the assessed limitations. [R. 183.] The ALJ was also directed to evaluate the non-examining source opinions in accordance with Social Security Ruling 96-6p and explain the weight given to such opinions. [Id.] On February 2, 2017, Plaintiff appeared and testified in a new hearing before the ALJ. [R. 82-111.] The ALJ issued a second decision on April 12, 2017, again finding Plaintiff not disabled under the Act. [R. 13-46.] Plaintiff again requested Appeals Council review, but this time the Council declined review. [R. 648-54.] Plaintiff sought review in this Court and, on June 28, 2018, the Commissioner filed a motion to remand this matter back to the ALJ so that the ALJ could further evaluate the decision's Step-5 finding, obtain supplemental vocational evidence, and issue a new decision. Gregory v. Colvin, 2:17-cv-2960-BHH-MGB (Dkt. # 13). This Court granted the Commissioner's motion. [R. 655.]
On remand, on January 23, 2019, Plaintiff appeared for a third disability hearing, this time before ALJ Ann Paschall. [R. 592-613.] On May 28, 2019, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act from December 21, 2012, through the date last insured. [R. 559-91.] At Step 1, the ALJ found Plaintiff last met the Act's insured status requirements on December 31, 2016, and had not engaged in substantial gainful activity during the period from December 21, 2012, through December 31, 2016. [R. 564-65, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative joint disease of bilateral knees and elbows, type II diabetes mellitus, obstructive sleep apnea (OSA), obesity, chronic obstructive pulmonary disease (COPD), affective disorder and anxiety disorder. [R. 565, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 566, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, concerning Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
I find that, through the date last insured, the claimant had the RFC to perform sedentary work as defined in 20 CFR 404.1567(a) except he could only occasionally use the feet to operate foot controls. He could not use ladders or climb stairs, could frequently balance and occasionally stoop, crouch, kneel
and crawl. He could not work at unprotected heights or around dangerous moving machinery. He could have occasional exposure to respiratory irritants, extreme heat, extreme cold and humidity. He could comprehend and perform simple, routine tasks and instructions, meaning jobs with GED reasoning level of 1. He could have no more than occasional interaction with coworkers and occasional interaction with the public. He could not perform fast-paced production work or any type of fast paced work. He could concentrate on, focus and attend to work tasks for at least two hours at a time before needing a normal break of 15 minutes, or once per day, a 30-minute meal break.[R. 569, Finding 5.] At Step 4, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a welder/pipe fitter. [R. 581, Finding 6.] However, upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), the ALJ found that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 582, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act at any time from December 21, 2012, the amended alleged onset date, through December 31, 2016, the date last insured. [R. 583, Finding 11.] Plaintiff filed the instant request for judicial review on July 29, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting reversal and remand. [Doc. 11.] Specifically, Plaintiff contends the ALJ failed to properly weigh the opinion evidence provided by Dr. Miller and Dr. Boscia. [Id. at 22-31.] The Commissioner argues the ALJ carefully considered Dr. Miller's and Dr. Boscia's opinions and gave legally sufficient reasons for the weight that she assigned them. [Doc. 13 at 15.] Further, the Commissioner contends the ALJ provided ample, legally and factually supported reasons for the weight she assigned each opinion. [Id. at 18.]
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 Consol. 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. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); 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); Brenem v. Harris, 621 F.2d 688, 690-91 (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 is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also 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 her past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [her] 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. 49,462-03, 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
Treating Physician Opinions
Plaintiff argues that Dr. Miller provided a statement that he was permanently disabled as of November 8, 2010, due to severe asthma and COPD, depression and anxiety; that his asthma was very reactive to any sort of odors, fumes or dust; that he would not be able to stand or walk for more than 20 minutes at a time due to shortness of breath and chronic fatigue; and that he would not be able to maintain concentration, persistence or pace for extended periods of time due to chronic fatigue, anxiety and depression. [Doc. 11 at 22-25.] Plaintiff contends that Dr. Miller concluded that even sedentary work would cause him fatigue such that he would need to rest frequently through the work day, more often that the usual breaks allow. [Id. at 27.] Plaintiff also contends that Dr. Boscia opined that, if Plaintiff got a whiff of industry and corresponding pulmonary irritants, he would probably have to miss more that three days of work per month due to asthma if he attempted to work an eight-hour day, five days per week. [Id. at 27-28.] Plaintiff contends the ALJ's findings that these "opinions were 'inconsistent with the other substantial evidence in the record' were simply general conclusory statements of inconsistency which were insufficient to support the rejection of a treating [physician] opinion." [Id. at 29.]
The ALJ's Evaluation of Opinion Evidence from Drs. Miller and Boscia
By way of summary, in June 2017 Dr. Lance W. Miller ("Dr. Miller") provided an opinion regarding the effect of Plaintiff's impairments which indicated as follows:
I previously provided a statement regarding Jamison Gregory's limitations on 9/24/12. I have reviewed that statement. Mr. Gregory continues to suffer from the same conditions and he continues to have the same limitations. His condition has been slowly declining. I have seen him approximately every three months on average since my last statement of 9/24/12.[R. 578-79 (internal quotation marks omitted).]
The most recent pulmonary reports we have from Mr. Gregory's pulmonologist on 4/17/15 say that his lung function was at about 43% of predicted for his age, height and weight. His resting FEV1 w~s 1.95, which was 43% of predicted. His 1/31/17 testing showed an FEV1 of 1.9, which was 42% of predicted. This shows a moderate to severe impairment. He had minimal response to bronchodilators. Mr., Gregory is 73" tall. His FEV1 has been well below 2.85. The problem is more so chronic fatigue and shortness of breath rather than frequent asthma attacks. Again, he has little response to bronchodilators.
Mr. Gregory's main problem with working would be chronic fatigue even with minimal activity due to his asthma. He also suffers from sleep apnea, which would contribute to his fatigue. When I see him in the office, he can get short of breath just walking from the waiting room to the exam room. I am certain he would be limited to a sedentary job. However, even the minimal amount of walking necessary to perform a sedentary job would cause him shortness of breath such that he would need to recover for about 15 minutes following any amount of walking. Even sedentary activity would cause him fatigue such that he would need to rest frequently throughout the workday, more often than the usual breaks allow. He would need to rest over 20% of the workday. His anxiety and depression would contribute to causing him Interruptions to concentration (Exhibit B29F).
In 2019, Dr. Joseph Boscia ("Dr. Boscia") with Upstate Lung, provided the following medical opinion with respect to Plaintiff's impairments:
I diagnosed Jamison Gregory with persistent severe asthma and severe obstructive lung disease. Mr. Gregory is on the maximum medical therapy for his persistent severe asthma.
He is taking high dose of steroids and is following the prescribed treatment regimen. The significant improvement of the FEV1 results noted in the records does not indicate that the pulmonary problems are not severe or are improved (because Mr. Gregory is on the maximum medical therapy). The 02/04/2019 pulmonary function test showed severe obstructive airway disease. If Mr. Gregory gets a whiff of industry (and the corresponding pulmonary irritants), he would probably have to miss more than 3 days of work per month if he attempted to work on an eight-hour day, five-day per week basis due to his asthma. Even if Mr. Gregory was in an office environment, he would have problems with attention and concentration sufficient to interrupt tasks more than 15% of the working portion of the workday if he attempted to work on an 8-hour day, five-day per week basis due to his asthma. Mr. Gregory's condition and these limitations have existed since November 5, 2010. Mr. Gregory's severe pulmonary condition makes him a gem for research, but it does not make him capable of [being a] reliable worker (Exhibit B 32F).[R. 579.]
In the ALJ's decision, she noted that she did not give controlling weight to either Dr. Miller's or Dr. Bocia's opinions because they were not well supported by medically acceptable clinical or laboratory diagnostic techniques and were inconsistent with the other substantial evidence of record. [R. 580.] In describing the evidence supporting her conclusion, the ALJ explained as follows:
I give little weight to the remaining portions of Dr. Miller's opinions because they are not well-supported by medically acceptable clinical and laboratory diagnostic techniques and are inconsistent with the other substantial evidence in the record. I give little weight to his statements that the claimant would require occasional unscheduled breaks, might have to lie down at times, would not be able to maintain concentration, persistence or pace for extended periods of time, and could not handle work related stress for extended periods. I also give little weight to statements that the claimant could do simple tasks for only brief periods of time such as half an hour (B 6F). Those portions are inconsistent with evidence cited above,
including Dr. Miller's own essentially normal mental status findings during all visits and findings on consultative exam by Dr. Ruffing. Dr. Miller's own exam findings over a long period do not support the opinions and the opinions are inconsistent with the remainder of the evidence. As noted, Dr. Miller obtained normal mental status exams on most visits. He is the only source who provided mental health treatment. He is a family practice physician and not a mental health professional, yet apparently at no time during the course of treatment did he consider the impairments severe enough to warrant referral to a mental health professional. His opinions are inconsistent with those of Dr. Ruffing, the only mental health professional who has examined the claimant since the amended alleged onset date. Dr. Ruffing found he was able to attend and focus without distractibility from internal or external stimuli. I give more weight to Dr. Ruffing's findings in this regard based on his expertise in evaluation of mental impairments and limitations.[Id.]
I give great weight to Dr. Boscia's opinion as to a need to avoid respiratory irritants but I give little weight to his opinion that the claimant would be "off task 15% of time in office job." The objective evidence in the record does not support that opinion. He referred to a February 2019 PFT that is not particularly relevant to the period at issue in this claim.
Discussion
Social Security Ruling 96-2p requires that when an ALJ assesses medical opinions, her decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and . . . be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Id. Moreover, ALJs are instructed to apply the factors provided in 20 C.F.R. § 404.1527—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions. 20 C.F.R. § 404.1527(c),(f). Importantly, more weight is generally given to the opinions of examining sources than to non-examining ones. Id. Additionally, more weight is generally given to opinions of treating sources than is given to opinions of non-treating sources, such as consultative examiners. Id. And, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (internal quotation marks omitted).
As noted above, Plaintiff's treating physicians repeatedly opined that his limitations were associated with his chronic fatigue and shortness of breath, even when he engaged in minimal activity. It is unfortunate that this Plaintiff has had to endure this disability process on three separate occasions with each of the various ALJs focusing on Plaintiff's limitations due to his mental health, and not properly addressing the testimony of his treating physicians regarding his limitations due to chronic fatigue and shortness of breath. In light of Plaintiff's documented medical condition, the Court finds this failure disturbing.
Plaintiff testified that he worked for the City of Union from 2002 to 2010 as a welder on gas lines until his doctor advised him to stop working because of his breathing problems. [R. 596-97.] Plaintiff testified that his breathing is aggravated by dust, perfume, cleaning supplies, "anything like that." [R. 598-99.] Plaintiff testified he could walk on level ground for 10-15 minutes, could stand for 15 minutes or longer, but is unable to bend over and pick up anything without being out of breath immediately afterwards. [R. 600-01.] Plaintiff testified he does not sleep well at night and takes naps everyday for about half the day. [R. 601.] As a result of his sleep apnea, Plaintiff testified that he is tired all the time and will go to sleep if he sits down. [R. 605.]
Prior to Plaintiff's onset date, on January 6, 2011, Dr. Miller indicated that Plaintiff was deemed permanently disabled as of November 8, 2010, due to severe asthma and COPD, depression, and anxiety and that he was being followed by the pulmonologist as well. [R. 424, 447.] Treatment notes indicate that, as early as November 8, 2010, Plaintiff was considered "permanently disabled by Dr. Feldman [Plaintiff's pulmonologist] because of the asthma and COPD," and had been diagnosed with sleep apnea as well. [R. 416, 425, 521-22.] Treatment notes, both prior to and after the onset date, document that Plaintiff consistently complained that his sleep was fragmented and that, while awake, he did not feel well rested, and also complained of daily shortness of breath with wheezing and dyspnea on exertion ("DOE"). [See, e.g., R. 416, 425, 476, 478, 502, 504, 507, 536, 538, 551, 553, 555.] And while the ALJ gave little weight to the statements of Plaintiff's treating physicians regarding his need for occasional unscheduled breaks, his need to lie down, or his inability to maintain concentration, persistence or pace for extended periods of time due to his mental status, the ALJ neglected to address these limitations in light of the findings by Plaintiff's treating physicians that these limitations were due to his shortness of breath, DOE, and inability to obtain restful sleep.
The RFC is a measurement of the most a claimant can do despite his limitations. 20 C.F.R. § 404.1545(a). According to the Administration, "RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing 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. 34,374-01, at 34,475 (July 2, 1996) (emphasis added). An ALJ determines RFC only after considering all relevant evidence of a claimant's impairments and any related symptoms (e.g., pain). 20 C.F.R. § 404.1529(a). The ALJ in this case, like the ALJ who issued the two prior opinions, failed to address Plaintiff's alleged limitations due to his chronic shortness of breath and lack of sleep. The absence of such discussion inhibits the Court's ability to review the RFC for support based on substantial evidence, particularly in light of the VE's testimony that an individual with the RFC the ALJ found Plaintiff had would not be able to work a full-time competitive job if he could not consistently work eight hours a day, five days a week, or if he would miss two or more days of work per month. [R. 610.] Additionally, the VE testified that if a person would fall asleep on an unpredictable basis, even one or two times a week, would be unemployable. [R. 611.]
Although the ALJ found Plaintiff's COPD and obstructive sleep apnea to be severe impairments, the decision fails to inform the Court as to how the ALJ found that the RFC accounted for the credible limitations associated with these impairments. This case has been remanded to the ALJ twice with all three decisions giving virtually identical reasons for finding Plaintiff not disabled. Plaintiff has had at least three treating physicians find him disabled, with two treating physicians noting that he would be limited in his ability to persist during an eight-hour work day due to his chronic fatigue due his COPD and sleep apnea. Providing "little weight" to the opinions of Drs. Miller and Boscia under these circumstances (with no contrary medical opinion evidence) plainly violates the provisions of the Treating Physician Rule. "As the Fourth Circuit and this Court have repeatedly stated, an ALJ is not allowed to substitute his medical opinions for those of medical providers. The ALJ must rely on the acceptable medical opinions offered in the record and those opinions must be weighed in accord with the Treating Physician Rule. The ALJ is not entitled simply to reject opinions in which he personally disagrees." Cohen v. Berryhill, 272 F. Supp. 3d 779, 783 (D.S.C. 2017).
This Court's general practice when the Court reverses an ALJ's decision is to remand that case to the Commissioner for further administrative action, but it is well settled that the District Court also has the authority to award benefits. 42 U.S.C. § 405(g). An award of benefits by the District Court is appropriate where the record is fully developed and it is clear the Commissioner would be required to award benefits on remand. Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001); Williams v. Comm'r of Soc. Sec., 104 F. Supp. 2d 719, 721 (E.D. Mich. 2000). This is a particularly appropriate course of action where there has been a significant lapse of time in the administrative processing of the claim. Holohan, 246 F.3d at 1210; Podedworny v. Harris, 745 F.2d 210, 223 (3rd Cir. 1984).
The disability issue in dispute in this appeal is quite a narrow one. The ALJ found that the claimant was capable of performing sedentary work with the restrictions the ALJ identified. A proper application of the Treating Physician Rule in this record, in light of the testimony of the VE, would result in a finding that there is not substantial evidence to support such a finding. Under these circumstances, reversal and remand to the agency to address for a fourth time the issues raised in this appeal would be an act of futility. After nearly nine years of administrative processing, enough is enough. The proper remedy is an award of benefits.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends the Commissioner's decision be reversed, pursuant to Sentence Four of 42 U.S.C. § 405(g), and remanded to the agency with the direction to award disability insurance benefits.
IT IS SO RECOMMENDED.
s/Jacquelyn D. Austin
United States Magistrate Judge June 15, 2020
Greenville, South Carolina