Opinion
Civil Action No. 8:19-cv-02443-BHH-JDA
06-29-2020
Ericka L. Grisom, Plaintiff, v. Commissioner of 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) 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 supplemental security income ("SSI"). 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.
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
In early 2016, Plaintiff filed an application for SSI alleging an onset of disability date of January 1, 2013. [R. 240-48.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 170-73, 177-82]. Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on June 5, 2018, ALJ Julie Petri conducted a de novo hearing on Plaintiff's claim. [R. 108-30.]
The ALJ issued a decision on September 19, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 41-65.] At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 20, 2016. [R. 46, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine and lumbar spine, sciatica, HIV infection, somatoform disorder, major depressive disorder, and personality disorder. [R. 46, Finding 2.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 47, Finding 3.]
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"):
I find that the claimant has the RFC to perform medium work as defined in 20 CFR 416.967(c) except that she can frequently climb, balance, stoop, kneel, crouch, and crawl. She can have frequent exposure to workplace hazards. She is limited to simple, routine tasks performed for two hours at a time. She can have occasional interaction with the public, coworkers and supervisors. She cannot perform tandem tasks.[R. 50, Finding 4.] The ALJ determined at Step 4 that Plaintiff had no past relevant work. [R. 58, Finding 5.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 58, Finding 9.] Thus, the ALJ found that Plaintiff had not been under a disability as defined in the Act since January 20, 2016, the date the application was filed. [R. 59, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined. [R. 1-7.] Plaintiff filed the instant action for judicial review on August 28, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence and should be reversed and remanded. [Doc. 14.] Specifically, Plaintiff contends the ALJ failed to properly weigh the opinion evidence provided by Dr. Grieshop, who found Plaintiff was disabled due to her back pain. [Id. at 25-28.] On the other hand, the Commissioner argues the ALJ carefully considered Dr. Grieshop's opinions and gave legally sufficient reasons for the weight that she assigned them. [Doc. 16 at 11-17.]
In a heading in Plaintiff's initial brief, she contends that "[t]he ALJ failed to properly evaluate Dr. Hossain's opinions" [id. at 25 (emphasis added)], but that appears to be a scrivener's error.
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. § 416.920. 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. § 416.920(a)(4); 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. § 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 416.972(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. § 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 416.921. 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), 1382c(a)(3)(G). 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), 1382c(a)(3)(G).
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. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
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. § 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 416.945(a)(1).
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 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). 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); 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. § 416.969a; 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. § 416.969a(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. § 416.969a(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. § 416.927(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. § 416.927(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. § 416.927(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. § 416.927(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. § 416.917; 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. § 416.917. 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. § 416.929(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. § 416.928 (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
Plaintiff argues that the ALJ erred by failing to improperly weighing the opinion of Dr. Theodore Grieshop. The Court agrees.
Social Security Ruling 96-2p requires that when an ALJ assesses medical opinions, his 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." 1996 WL 374188. Moreover, ALJs are instructed to apply the factors provided in 20 C.F.R. § 416.927—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. § 416.927 (c), (f). 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). Furthermore, the determination of whether a claimant is disabled under the Act is a legal determination and ultimately one for the Commissioner, and not a medical source, to make. 20 C.F.R. § 416.927(d)(1) (stating "[a] statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled"). A medical source opinion on that issue is not entitled to any special weight. 20 C.F.R. § 416.927(d)(3). ALJs are further prohibited from substituting their medical opinions for those of medical providers, which the Fourth Circuit recently referred to as the prohibited practice of the ALJ "playing doctor." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).
Relevant Evidence
Plaintiff presented evidence that she suffers from a number of problems that affect her ability to work, but the most relevant to this action is pain, particularly back pain. She testified that she often experiences severe pain and had to leave her last job because of pain and absences caused by pain. [R. 123-24.]
Plaintiff was treated for several years by Dr. Theodore Grieshop. Although Dr. Grieshop specializes in treating infectious diseases and was treating Plaintiff for HIV symptoms [R. 735], he also treated Plaintiff for a range of other problems, including back pain [e.g., R. 413-17 (noting on 2/13/15 that Plaintiff "continue[d] to have low back pain" and ha[d] been seen by a chiropractic physician and diagnosed with sciatica and was receiving treatments; indicating the physical exam showed lumbosacral tenderness, right psoas tenderness, and positive straight leg rise on the right; and prescribing cyclobenzaprine HCl 10 mg for sciatica pain); R. 407-12 (noting on 5/14/15 that Plaintiff continued to have low back pain and spasm that was primarily right-sided; indicating the physical exam showed lumbosacral tenderness and right psoas tenderness; and continuing cyclobenzaprine HCl for sciatica and naproxen 375 mg for back pain, instructing Plaintiff regarding exercises, and ordering x-rays); R. 401-06 (noting on 9/3/15 that Plaintiff continued to complain of low back pain and that x-rays in May 2015 confirmed "mild degenerative changes and grade 1 retrolisthesis at L4 on L5"; indicating the physical exam showed lumbosacral tenderness, right PSIS tenderness, and positive straight leg raise on the right; noting naproxen had caused gastrointestinal distress; and providing samples of acetaminophen and continuing with cyclobenzaprine HCl); R. 382-86 (noting on 3/21/16 that Plaintiff came in to discuss her ongoing back pain, complaining that it had "progressed from right side only to bilat[eral]" and that she "ha[d] pain radiating down bilat[eral] legs"; indicating the physical exam showed "[b]ilat[eral] PSIS tenderness with tenderness as well over right sciatic notch" and that Plaintiff was "[u]nable to sit on exam table due to pain"; and ordering a lumbar MRI and continuing cyclobenzaprine HCl); R. 568-76 (noting on 2/20/17 complaints of back pain; physical exam showed Plaintiff had tenderness to palpation in the right sacroiliac region)].
On May 10, 2018, Dr. Grieshop completed a questionnaire regarding Plaintiff, his answers to which are summarized as follows:
1. Plaintiff states that she is unable to perform sedentary work.
2. Plaintiff should avoid stooping because it causes back pain that radiates to her legs.
3. Plaintiff will most probably have to rest away from the work station for significantly more than an hour during the working portion of the day
because she is unable to sit more than 15 minutes due to pain; is unable to reach; spends most of the day in bed; eats TV dinners; and needs help to get into the tub.[R. 732-33.] In a second statement provided by Dr. Grieshop dated June 7, 2018, he reiterated the opinions provided above in the May 2018 statement. [R. 735.] Dr. Grieshop also added that he is certified in infectious disease by the American Board of Internal Medicine and treated Plaintiff for her HIV infection at the Medical Group of the Carolinas. [Id.]
4. If Plaintiff attempted to work on a 8-hour day, 5-day-per-week basis, she would miss more than three days of work per month because she was fired from her previous job for missing too much work.
5. Plaintiff's attention and concentration are usually satisfactory but pain may affect both.
6. Diagnoses underlying her impairments include an April 2016 MRI showing no significant spinal stenosis, evidence of facet arthropathy L3-5, and small focal disc protrusion L1-2; and a December 2017 MRI of the right hip showing a low-grade partial tear of the right gluteus minimus, degenerative changes, and that her right hip is "okay."
7. The basis for his opinion (that Plaintiff suffers from the impairments at the level of severity indicated) are her office examinations.
8. Plaintiff has been so impaired since September 2014; an office note on November 13, 2014, mentions emergency department evaluation for back pain.
The ALJ's Evaluation of Dr. Grieshop's Opinions
With regard to Plaintiff's back pain, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause 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." [R. 54.] An important component of that decision was the ALJ's determination that Dr. Grieshop's opinion was entitled only to "little weight." [R. 56.] The ALJ explained that assessment as follows:
I do not give controlling weight to Dr. Grieshop's opinion because it is not well-supported by medically acceptable clinical or laboratory diagnostic techniques and is inconsistent with the other substantial evidence in the record. In particular, the imaging results he referred to do not support the degree of limitation he reported.[R. 56-57.]
Considering the factors of treatment and examining relationship, supportability, consistency and specialization, I give little weight to the opinion. Dr. Grieshop said [Plaintiff's] real physical problem that interfered with work activities was her back condition and cited lumbar and hip imaging results. However, he cited no objective exam findings. He relied instead on claimant's subjective statements that she was unable to perform sedentary work and that she lost her job due to missing work. Additionally, the conditions for which he treated [Plaintiff], HIV and hepatitis C, were essentially cured or stabilized with medication. Finally, Dr. Grieshop is a specialist in the treatment of infectious diseases rather than in the treatment of orthopedic problems. Any treatment of her back and hip pain was usually given by Middle Tyger [Community Clinic].
Discussion
Plaintiff argues that the ALJ's evaluation of Dr. Grieshop's opinions was erroneous for several reasons. [Doc. 14.] The Court agrees.
At bottom, Dr. Grieshop cited as diagnoses underlying Plaintiff's impairments a 2016 lumbar MRI showing evidence of facet arthropathy L3-5 and small focal disc protrusion at L1-2 and a 2017 MRI of her right hip showing a low-grade partial tear of the right gluteus minimus with degenerative changes. [R. 732-33.] As support for the severity of the limitations he identified, Dr. Grieshop pointed to the notes of Plaintiff's office examinations. [Id.]
In discounting Dr. Grieshop's opinion, the ALJ primarily stated that the imaging results Dr. Grieshop referred to "do not support the degree of limitation he reported." [R. 56.] However, by interpreting the imaging results differently than Dr. Grieshop did, the ALJ simply substituted her medical opinion for Dr. Grieshop's, which she was not authorized to do. See Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) ("An ALJ cannot play the role of doctor and interpret medical evidence when he or she is not qualified to do so."); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (as a lay person, an ALJ is "simply not qualified to interpret raw medical data in functional terms"). Moreover, even if the ALJ were justified in discounting Dr. Grieshop's opinions based on her own independent medical judgment, she did not explain with any specificity why she believed that Dr. Grieshop's views were incorrect. Thus, in addition to offering an unauthorized medical opinion, the ALJ failed to construct a "logical bridge" supporting her analysis that would allow for meaningful judicial review. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks omitted). Given that the ALJ's disagreement with Dr. Grieshop's view of the medical significance of the imaging results was the ALJ's primary basis for discounting Dr. Grieshop's opinion, that error is sufficient in itself to justify reversal. Nonetheless, the Court will address the ALJ's other reasons for discounting Dr. Grieshop's opinions, each of which is also problematic.
In particular, the ALJ did not explain either (1) why Dr. Grieshop was wrong to conclude that Plaintiff's imaging results showed evidence of facet arthropathy L3-5, small focal disc protrusion L1-2, and a low grade partial tear of the right gluteus minimus, or (2) why Dr. Grieshop was wrong to conclude that those imaging result and the information contained in his treatment notes supported the severity of the limitations he identified.
As an additional basis for discounting Dr. Grieshop's opinion, the ALJ stated that Dr. Grieshop "cited no objective exam findings" and "relied instead on the claimant's subjective statements that she was unable to perform sedentary work and that she lost her job due to missing work." [R. 56-57.] But the ALJ did not explain why she believed that Dr. Grieshop relied solely on Plaintiff's subjective statements. When asked to identify the bases for his view regarding the severity of the limitations he identified, Dr. Grieshop had answered, "[Plaintiff's] office examinations - see notes." [R. 732.] Although those notes include reports of Plaintiff's subjective complaints, as previously cited, they also include numerous physical examination results, among other components. [E.g., R. 382-86, 401-17, 568-76 (all noting physical examination results and treatment plans related to Plaintiff's back pain).] In discounting Dr. Grieshop's opinion, the ALJ did not discuss these exam results, let alone explain why she believed they did not support Dr. Grieshop's opinion. See Cook v. Berryhill, No. 6:18-cv-01551-DCC-KFM, 2019 WL 6120544, at *15 (D.S.C. June 13, 2019) (concluding that the ALJ erred by discounting the treating physician's opinion without "evaluat[ing] the plaintiff's subjective complaints in light of [the treating physician's] objective physical examinations of the plaintiff" even though the treating physician offered several limitations "indicating that she found credible the plaintiff's subjective complaints with respect to pain limiting her functioning and inability to pay attention or concentrate" and noting that "it is legally insufficient for the ALJ to recite some facts, ignore others, and make conclusory statements in support of his disregard for the medical opinions"), Report and Recommendation adopted by 2019 WL 4667720 (D.S.C. Sept. 24, 2019).
The Commissioner also contends that Dr. Grieshop did not even purport to offer his own opinion regarding Plaintiff's ability to work, but rather, relied only on Plaintiff's representations that she could not work. [Doc. 16 at 15.] This argument is factually incorrect. In response to the question asking the bases for his opinion that Plaintiff suffered from the impairment at the level that Dr. Grieshop had identified, Dr. Grieshop answered, "Her office examinations - see notes." [R. 732.] By so doing, Dr. Grieshop indicated that he was not merely reporting complaints of his patient, but his belief that she actually suffered from the impairment at the level of severity he had described. And his later-issued opinion letter contained similar language. [R. 735 ("[S]ince September 2014, I think she would most probably have to miss more than 3 days of work per month if she attempted to work on an 8-hour day, 5-day per week basis.").]
The ALJ also justified her discounting of Dr. Grieshop's opinion on the grounds that "Dr. Grieshop is a specialist in the treatment of infectious diseases rather than in the treatment of orthopedic problems" and that "[a]ny treatment of [Plaintiff's] back and hip pain was usually given by Middle Tyger [Community Clinic]." [R. 57.] It is unclear why the ALJ believed that these factors justified her rejection of Dr. Grieshop's opinion. Regardless of Dr. Grieshop's specialty in the field of infectious diseases, Dr. Grieshop was a physician who had been regularly examining Plaintiff and treating her back problems. See 20 C.F.R. § 416.927(c), (f) (providing that more weight is generally given to the opinions of examining sources than to non-examining ones and that more weight is generally given to opinions of treating sources than to non-treating sources). That Dr. Grieshop was not also an orthopedist did not authorize the ALJ to substitute her medical judgment for his. And to the extent that the ALJ was suggesting that the opinion of another treating physician at Middle Tyger would have been entitled to more weight than Dr. Grieshop's regarding the severity or disabling nature of Plaintiff's back pain, the ALJ does not point to any specific disagreement. Indeed, Dr. Grieshop pointed to Plaintiff's spondyloarthropathy as a basis for her pain [R. 732], and Dr. Edward Warren, treating Plaintiff at Middle Tyger following the April 2016 lumbar MRI, diagnosed the same condition. [R. 467]. Dr. Warren, in fact, noted that Plaintiff's pain was so severe that "carry[ing] on life in spite of the pain . . . m[ight] not be possible. Opioids are not likely to help" [Id.] And Dr. Petra Warren also sought to provide relief, through different and increasing amounts of medication, to Plaintiff's "severe pain." [R. 470, 502, 504, 505, 506.]
The ALJ also noted that "the conditions for which [Dr. Grieshop] treated [Plaintiff], HIV and hepatitis C, were essentially cured or stabilized with medication" when Dr. Grieshop provided the opinions in question. [R. 57.] The ALJ did not explain why she believed this fact was relevant to the issue of how much weight to assign Dr. Grieshop's opinions.
Middle Tyger's treatment notes show that Plaintiff came to the clinic on February 17, 2016, complaining of "constant pain in her lower back, 7/10 in intensity x 3 years" and that her pain restricted her range of motion. [R. 469.] She was treated by Dr. Petra Warren. Plaintiff reported that she was using "4 tabs of Flexeril daily but d[id]n't have much relief with it." [Id.] During the appointment, she was "bent over with pain in back" and "[e]xquisitely tender bilaterally over [her sacroiliac] joint." [Id.] Dr. Warren injected her right sacroiliac joint with Xylocaine, Bupivacaine, and Kenalog and noted that Plaintiff felt "almost immediate improvement." [Id.] Dr. Warren also gave Plaintiff DC Flexeril and "tramadol 50 mg bid [for] severe pain." [R. 470.]
Following Plaintiff's lumbar MRI, Dr. Edward Warren's notes from a follow-up visit to Middle Tyger on April 29, 2016, indicate that "the MRI was essentially normal showing no signs of spondylolisthesis, disc herniation, or spinal stenosis of the lumbosacral spine"; Plaintiff's "pain [wa]s severe and disabling"; Plaintiff "hurt[] primarily right over the middle of the sacrum and not even at the sacroiliac joints"; her "back [wa]s held rigidly in the severe lordotic position"; and Dr. Warren "suspect[ed that the pain was the result of] some kind of spondyloarthropathy related to the HIV" and he in fact diagnosed spondyloarthropathy. [R. 467.] Dr. Warren noted that the tramadol had not helped and would be stopped and that Plaintiff, going forward, would "take meloxicam 15 mg daily and use Tylenol" as needed. [R. 465, 467.]
Dr. Petra Warren saw Plaintiff at Middle Tyger on June 22, 2016, and noted Plaintiff complained of lower back pain, pain down her right leg and left hip, pain with any movement of her legs and back, and an exquisitely tender right sacroiliac joint. [R. 506.] She was prescribed Gapapentin 100 mg TID for pain and injected in her right sacroiliac joint area with Xylocaine, Bupivacaine, and Kenalog. [Id.] Dr. Warren assessed her as having right sacroiliitis and chronic pain, noting that the "MRI scan was unremarkable." [Id.]
Dr. Petra Warren saw Plaintiff again on November 2, 2016, noting that Plaintiff reported that she had fallen six weeks prior and injured her left knee and aggravated her back pain, with the pain concentrated in her right lower back and extending "down back of thigh to knee." [R. 505.] Dr. Warren noted "[e]xquisite tenderness to palpation in right sacroiliac area." [Id.] Dr. Warren injected the right sacroiliac area with Xylocaine, Bupivacaine, and Kenalog, and noted immediate improvement of the pain afterwards. [Id.] She assessed her as having sacroiliitis. [Id.]
Plaintiff returned to Middle Tyger on November 16, 2016, reporting that relief from the prior injection had lasted only two days. [R. 504.] Dr. Petra Warren's physical exam showed "[t]enderness . . . of the right [sacroiliac] joint region." [Id.] She noted that Plaintiff complained of pain with rotation of her right hip but that the pain was "referred to R post back in area of [sacroiliac] joint." [Id.] Dr. Warren again assessed Plaintiff with sacroiliitis. [Id.] Plaintiff was instructed to begin taking Celebrex and she was injected with Kenalog, Xylocaine, and Bupivicaine in her right sacroiliac region, which provided immediate relief. [Id.]
Plaintiff returned next on December 7, 2016, reporting that her back pain had not improved. [R. 502.] She reported that she had not received the Celebrex from her last visit but had been taking over-the-counter pain relievers, which had provided little relief. [Id.] She reported that the pain was constant and worsened with weather changes; that she had "pain in right sacroiliac region, described as sharp" and "rated 10/10"; and that she had "moderate pain . . . in left sacroiliac region 5/10." [Id.] Dr. Petra Warren assessed her with sacroiliitis and chronic pain. [Id.] She increased Plaintiff's Celebrex prescription to 200 mg and instructed Plaintiff to increase the number of Gabapentin tablets she had been taking. [R. 503.]
The Court finds it curious that the Commissioner cites Dr. Edward Warren's views as the primary evidence with which he claims Dr. Grieshop's opinions were inconsistent. [Doc. 16 at 14.] But in the end, the Commissioner in attempting to manufacture disagreement merely quotes portions of Dr. Warren's notes that describe the more favorable aspects of the MRI results without specifically disputing Dr. Grieshop's findings that the April 2016 MRI showed facet arthropathy at L3-4 and L4-5 and small focal disc protrusion at L1-2. [Id. at 5-6, 13-14.] Not only did Dr. Edward Warren diagnose spondyloarthropathy [R. 467], but Dr. Petra Warren assessed Plaintiff with sacroiliitis [R. 502, 504, 505]. Accordingly, the Middle Tyger doctors were in apparent agreement with Dr. Grieshop that arthritis-related conditions were a significant source of her severe back pain.
The Commissioner argues that Dr. Grieshop's limitations were also inconsistent with Plaintiff's activities of daily living and that there was other evidence that some statements Plaintiff made to Dr. Grieshop were untrue. [Doc. 16 at 15-16.] The ALJ on remand may conclude that the evidence regarding Plaintiff's daily living activities justifies discounting Dr. Grieshop's opinion, but because the ALJ has not given any indication in the current decision that she discounted Dr. Grieshop's decision based on these facts, neither of these new justifications would be a proper basis for affirmance. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ."); Steel v. Barnhart, 290 F.3d 936 (7th Cir. 2002) ("But regardless whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for her decision and confine our review to the reasons supplied by the ALJ."); Canady v. Colvin, No. 5:12-2507-KDW, 2014 WL 4063155, at *3 (D.S.C. Aug. 14, 2014) ("The court cannot look to post-hoc offerings to support the Commissioner's decision.").
The bottom line here is that the ALJ discounted the testimony of a treating physician on the critical factual questions in the case, namely, how intense Plaintiff's pain was and how that affected her ability to work. However, the ALJ's reasons for discounting Dr. Grieshop's opinions are not valid. The Court therefore recommends that the ALJ's decision be reversed and the case remanded for further proceedings so that the ALJ can evaluate the evidence in accordance with the applicable rules.
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 be 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 June 29, 2020
Greenville, South Carolina