Opinion
C/A No.: 1:17-cv-01572-MBS-SVH
10-30-2018
Roger Lee Holmes, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about May 5, 2015, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on November 30, 2014, after he broke his leg on January 31, 2012, and it did not heal properly. Tr. at 363-75. His applications were denied initially and upon reconsideration. Tr. at 191-92, 228, 231, 237-41, 255-58. On December 8, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Henry H. Chambers. Tr. at 36-141 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 1, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 8-35. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 360, 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 16, 2017. [ECF No. 1].
Plaintiff filed a prior electronic application on April 10, 2014, that was determined on June 2, 2014, and closed. Tr. at 142-58, 160. In 2015, Plaintiff filed another claim, and the record provides different days for this filing date. Compare Tr. at 11 (May 1, 2015), 159 (same), with Tr. at 363 (May 5, 2015), 369 (same). As this issue appears unresolved, but only differs by a few days and does not change the analysis in this case, the undersigned has elected to use the date provided on Plaintiff's DIB and SSI applications—May 5, 2015.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 42 years old at the time of the hearing. Tr. at 46. He completed the eighth grade before he dropped out of school. Tr. at 52-53. His past relevant work ("PRW") was as a painter for approximately 20 years, chicken dresser, welder, upholstery measurer, and textile machine operator. Tr. at 44, 47, 98-107. He alleges he has been unable to work since November 30, 2014. Tr. at 363, 369.
2. Medical History
On May 28, 2014, Susan J. Tankersley, M.D. ("Dr. Tankersley"), a state agency consultant, performed an examination of Plaintiff. Tr. at 517-521. Plaintiff reported he suffered a right longitudinal femur fracture two years prior that was treated with open reduction and internal fixation surgery and insertion of hardware. Tr. at 517. Plaintiff indicated he began to develop knee pain laterally in the superior joint after the surgery and could only stand for an hour before the pain forced him to sit. Id. Plaintiff also complained of hip pain, but only after sitting for too long, and he indicated that the hip pain was less severe than the knee pain. Id. Plaintiff denied any lower extremity sensory changes or lower back pain, but reported his right leg was weaker than his left. Id. He reported severe, instantaneous headaches when he coughed. Tr. at 518. Plaintiff stated these coughing spells had caused him to pass out approximately ten times over the prior two years. Id.
Dr. Tankersley examined Plaintiff and noted his right leg appeared to have length inequality with some angulation at the knee. Tr. at 519. Dr. Tankersley also noted Plaintiff had effusion of the knee that was somewhat fusiform and had mild muscle wasting of his right quadriceps. Id. Plaintiff's strength was somewhat pain limited with 4-/5 proximally and distally. Id. Plaintiff's hip range of motion ("ROM") remained mostly good with flexion to eighty or ninety degrees, abduction around twenty-five degrees, adduction around five to ten degrees, internal rotation around thirty degrees, and external rotation from forty to fifty degrees. Id. Dr. Tankersley performed a flexion, abduction, and external rotation test that was negative. Id. However, a McMurray's test was "very positive" and resulted in pain superiorly and laterally. Id. Dr. Tankersley also noted some rotational instability and a reduction in ROM of three degrees on extension with full flexion. Id.
Dr. Tankersley assessed history of right longitudinal femur fracture, status post open reduction and internal fixation; probable internal derangement, right knee; possible onset post-traumatic osteoarthritis; chronic knee pain with instability; syncope and near syncope of uncertain etiology; and illiteracy. Tr. at 520. She recommended an x-ray of Plaintiff's hip and knee and a psychological certification exam with neuropsychic testing to further evaluate his illiteracy. Id. Dr. Tankersley opined Plaintiff's knee problems, if left untreated, would "limit his job selection to light to medium duty positions at best," his illiteracy may further limit his job selection, and his syncope may preclude employment where it would result in harm to himself or others. Id. She suspected a definitive diagnosis of his knee pathology would require magnetic resonance imaging ("MRI"). Id.
On May 28, 2014, Plaintiff presented to Innervision Medical Imaging Grove for x-rays of his right femur, tibia, and fibula. Tr. at 514-15. According to Dr. William Perry Edenfield, the x-rays showed a medullary rod fixation with distal interlocking screws across a heavily callused, well-healed fracture of the femur at the junction of its mid and distal thirds, no acute fracture, and no definitive hip or knee pathology. Id. They also showed normal mineralization, no fracture, and no dislocation at the knee or ankle. Id. There was a negative right lower leg impression with no acute findings. Id.
On June 5, 2015, Plaintiff was treated at Baptist Easley Hospital for right knee pain. Tr. at 537. The treating physician noted Plaintiff's right knee was tender and his ROM was limited. Tr. at 539. The hospital performed an x-ray of Plaintiff's knee that did not show any joint effusion, fracture, or subluxation. Tr. at 541, 621. In addition, the distal femoral rod and locking screws in Plaintiff's knee were stable. Id. The treating physician diagnosed knee sprain and provided Plaintiff with pain medication and crutches. Tr. at 539-40.
On June 16, 2015, Robin L. Moody, Ph.D. ("Dr. Moody"), an agency consultant, performed a clinical evaluation, including a clinical interview and the following tests: Mini-Mental State Examination, Second Edition ("MMSE-2"); Wechsler Adult Intelligence Scale, Fourth Edition ("WAIS-IV"); and Wide Range Achievement Test, Fourth Edition ("WRAT-4"). Tr. at 545-52. Plaintiff reported he had not experienced a fainting spell since he quit smoking six months prior, but he still had headaches. Tr. at 546. Plaintiff also reported repeating the third grade and dropping out of school in the ninth grade. Tr. at 547. Plaintiff had difficulty in school, especially with reading, but did not receive any special therapies. Id.
Plaintiff stated he had worked as a painter for over 25 years, but that he was fired from his last position for poor performance because he could not climb ladders, carry large paint buckets, or get on his knees to paint. Tr. at 547. Plaintiff reported his activities of daily living ("ADLs") to be watching television and occasionally attempting to walk in the yard. Id. He stated he could drive a car using his left leg to operate the brake pedal, prepare his own simple meals, make cash transactions, and bathe or dress himself without assistance. Id. However, Plaintiff reported he no longer performed chores or shopped for groceries due to his difficulty with standing and mobility. Id. He also reported difficulty putting on his shoes because he could not bend his leg. Id.
Plaintiff scored a 22 out of 30 on the MMSE-2 exam. Tr. at 548. He could identify three out of three items for immediate recall, but could only identify one out of three items for delayed recall. Id. Plaintiff knew the year, season, month, day, date, state, county, city, building, and floor. Id. He correctly responded to one out of five serial 7s. Id. Plaintiff could identify two objects, repeat a grade, identify three geometric shapes, write a sentence, and copy conjoining pentagons. Id. Plaintiff could not read a proffered sentence, but could follow the verbal command. Id.
The WAIS-IV revealed Plaintiff was deficient in verbal comprehension and very deficient in perceptual reasoning, working memory, processing speed, and full-scale intelligence quotient ("FSIQ"). Tr. at 548. On the WRAT-4, Plaintiff's scores indicated he was very deficient in reading composite; he had less than a kindergarten level ability in word reading, sentence comprehension, and spelling; and a kindergarten level ability in math computation. Tr. at 549. Dr. Moody noted Plaintiff's FSIQ was 57, his verbal score was 74, and his nonverbal score was 60. Id.
Dr. Moody found Plaintiff's ability to maintain attention and concentration to be within the extremely low range and only better than one percent of individuals his same age. Tr. at 549-50. In addition, Plaintiff's ability to process routine visual information without making errors was extremely low and the lowest of all index scores. Tr. at 550. Dr. Moody indicated "[s]uch a weakness in mental control and visual tracking make comprehension and learning very time consuming and mentally exhausting for [Plaintiff]." Id. Dr. Moody noted data from this evaluation suggested Plaintiff's primary Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5") diagnosis ruled out mild intellectual disability. Id.
On June 26, 2015, Plaintiff received an MRI on his right knee. Tr. at 554. The MRI showed a small spur on the superior patella, but no evidence of significant degenerative disease, joint effusion, or fracture. Id.
Also on June 26, 2015, Charles William Kelly Parke, M.D. (Dr. Parke"), an agency consultant, examined Plaintiff for complaints of severe right knee pain, history of syncope, eczema, and psoriasis. Tr. at 556. Plaintiff reported his right knee popped and hurt when he straightened it, walked for any length of time, or stood for more than ten minutes. Id. Plaintiff also complained of occasional right ankle pain. Id. Plaintiff denied having eczema or psoriasis. Id. Dr. Parke noted Plaintiff experienced pain with movements of his right knee, especially flexion (which was limited to 85 degrees), and there was moderate crepitus upon flexion. Tr. at 557. Plaintiff complained of right hip pain when flexing his right thigh and his right straight leg raising ("SLR") test was limited to 60 degrees. Id. Dr. Parke assessed status post repair of the right femur and probable osteoarthritis in the right knee. Tr. at 558. Dr. Parke recommended an MRI or arthroscopy of Plaintiff's right knee, noting his symptoms indicated "he does have a problem with his right knee." Id.
On July 31, 2015, Silvie Kendall, Ph.D. ("Dr. Kendall"), a state agency consultant completed a Psychiatric Review Technique ("PRT") assessment. Tr. at 166-67, 182-83. Dr. Kendall opined Plaintiff had moderate restrictions of ADLs, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace, but no repeated episodes of decompensation. Tr. at 166. Dr. Kendall also opined Plaintiff "would be capable of performing simple routine tasks in a setting without the added demands of public contact." Tr. at 167. In addition, Dr. Kendall completed a Mental Residual Functional Capacity ("RFC") assessment and opined Plaintiff was moderately limited in his ability to understand, remember, and carry out detailed instructions; maintain concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; and appropriately interact with the general public or respond to changes in the work setting. Tr. at 171-72, 186-89. However, Plaintiff was not significantly limited in his other abilities. Id.
On August 3, 2015, Frank Ferrell, M.D. ("Dr. Ferrell"), a state agency consultant completed a Physical RFC assessment. Tr. at 168-70, 184-86. He indicated Plaintiff had the following limitations: occasionally lift, carry, push or pull twenty pounds; frequently lift, carry, push, or pull ten pounds; stand, walk, or sit with normal breaks for about six hours; frequently balance and stoop; occasionally climb ramps, stairs, ladders, ropes, or scaffolds; and occasionally kneel, crouch, or crawl. Tr. at 168-69. In addition, he opined Plaintiff should avoid concentrated exposure to hazards. Tr. at 170.
On September 9, 2015, Plaintiff saw George Sutter, M.D. ("Dr. Sutter"), at Samaritan Health Clinic of Pickens County for complaints of shortness of breath. Tr. at 579. Plaintiff reported smoking two packs of cigarettes a day and having a chronic cough with green sputum. Id. Dr. Sutter advised Plaintiff to stop smoking and noted his lungs were clear. Id. Dr. Sutter also noted Plaintiff was using a cane to walk and stated he would x-ray Plaintiff's right knee. Id. Dr. Sutter diagnosed smoker, knee pain, and obesity. Id. He prescribed Nitrostat, Ventolin, Chantix, and Naproxen. Id.
On September 10, 2015, Plaintiff received x-rays for his chest and right knee that were normal and showed no acute abnormalities, Tr. at 582-83, 599-600.
On September 10, 2015, Plaintiff's blood was collected for testing at Baptist Easley Hospital. Tr. at 595-97. In addition, Plaintiff presented to Pickens County Free Medical Clinic with chest pain. Tr. at 598.
On September 16, 2015, Plaintiff returned to Dr. Sutter for blood work. Tr. at 577. Dr. Sutter noted he would refer Plaintiff to an orthopedist for his knee pain. Id. Plaintiff also complained of dizziness, for which Dr. Sutter recommended Meclizine. Id.
On September 17, 2015, Plaintiff's blood work was tested at Baptist Easley Hospital. Tr. at 581, 595. Plaintiff's A1C level was diagnostic of diabetes. Id.
On September 24, 2015, Plaintiff returned to Dr. Sutter for his lab results. Tr. at 576. Dr. Sutter diagnosed Plaintiff with diabetes mellitus. Id. He prescribed Metformin. Id.
On September 30, 2015, Plaintiff saw Jason Looper, a physician's assistant at Upstate Bone and Joint, upon referral by Dr. Sutter. Tr. at 589, 619-20. Plaintiff reported persistent and moderate anterior and lateral knee pain. Tr. at 619.Plaintiff denied mechanical symptoms, such as locking up or giving way, and denied right hip or thigh pain. Id. Looper noted Plaintiff's ROM was painful, but he was able to reach full extension and flex to 120 degrees. Tr. at 620. Looper noted mild patellofemoral crepitus throughout the arc of motion, tenderness to palpation over the lateral femoral condyle, and mild peripatellar tenderness. Id. Looper performed a varus and valgus stress test, McMurray's test, and Lachman's test, all of which were negative. Id. Looper diagnosed right knee pain, thought Plaintiff's symptoms were "primarily attributed to painful hardware" in his right knee, and recommended surgery to remove the hardware. Id. Plaintiff "stated he would like to think about it" and would call back if he elected to have the surgery. Id. Looper prescribed Plaintiff a walking cane "to use for ambulation assistance, per his request." Id. In addition, William Roberson, M.D. ("Dr. Roberson"), signed the treatment note. Id.
On October 30, 2015, Larry Clanton, Ph.D. ("Dr. Clanton"), a state agency consultant completed a PRT assessment, noting there were no new mental allegations and affirming the initial rating provided by Dr. Kendall. Tr. at 201-02. Dr. Clanton also completed a MRFC assessment, agreeing with Dr. Kendall's initial review. Tr. at 206-08.
On October 30, 2015, Matthew Fox, M.D. ("Dr. Fox"), a state agency consultant completed a RFC assessment, affirming the initial rating provided by Dr. Ferrell. Tr. at 204-06.
On February 22, 2016, Baptist Easley Hospital tested Plaintiff's blood. Tr. at 594. Plaintiff's A1C had dropped to 6.3, but still indicated an increased risk for diabetes. Id.
On May 23, 2016, Plaintiff underwent an air contrast barium enema at Baptist Easley Hospital. Tr. at 603. The test showed minimal diverticulitis and a nine-millimeter left renal stone. Id.
On June 20, 2016, Plaintiff presented to John H. Fulcher, M.D. ("Dr. Fulcher"), at Baptist Easley Hospital and received x-rays of his right femur and hip. Tr. at 593, 605-08. Regarding Plaintiff's right femur, Dr. Fulcher noted good bony union, no plain film evidence of osteomyelitis, and no acute processes. Tr. at 605. He found postoperative changes in the right femur (intramedullary rod and screws transfixing an old midshaft fracture), but noted an otherwise normal exam. Id. Regarding Plaintiff's right hip, Dr. Fulcher noted a normal right hip with no bony lesions or fractures, normal sacroiliac joints, and an unremarkable lower lumbar spine. Tr. at 607.
On June 20, 2016, Plaintiff also underwent blood work at Baptist Easley Hospital. Tr. at 593. Plaintiff's A1C was 6.4, indicating an increased risk for diabetes. Id.
On September 13, 2016, Janice Lee, a nurse practitioner at Foothills Orthopaedics, evaluated Plaintiff for right knee pain. Tr. at 609-14. Plaintiff reported his knee frequently locked up, and Lee noted he walked with a cane. Tr. at 612. Lee examined Plaintiff's right hip, noting the ROM was within functional limits, there was no pain throughout the arc of motion, no tenderness to palpation to the hip, and his leg lengths appeared grossly equal. Id. Lee examined Plaintiff's right knee, noting a prominent screw to the lateral aspect of the tibial condyle, which was not painful to palpation; no pain with flexion or extension; no effusion; no evidence of crepitus with knee flexion or extension; palpation revealed tenderness to medial and lateral joint lines; full ROM; stable to stressing in all planes; normal tracking; 5/5 muscle strength; peripheral pulses normal 2/2 lower extremities; and intact and symmetrical sensation in all dermatomes with good coordination. Tr. at 613. Lee assessed degenerative joint disease in Plaintiff's right knee and sequela hip fracture. Id. Lee also noted a chronic diagnosis of carpal tunnel syndrome in Plaintiff's left arm. Tr. at 610. Lee performed a cortisone injection for pain relief in Plaintiff's right knee with instructions to return to the Samaritan Health Clinic in Easley for injections. Tr. at 613; see also Tr. at 616-18. Daniel Lee, M.D. ("Dr. Lee") signed the treatment note. Tr. at 609.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on December 8, 2016, Plaintiff stated he was 42 years old and had completed the eighth grade. Tr. at 46, 52-53. Plaintiff testified he requested disability benefits due to a broken leg that did not heal properly and prevented him from doing his normal activities or prior work. Tr. at 43-44.
Plaintiff testified he was unable to lift heavy items, climb ladders, or stand up and walk more than ten yards without a cane. Tr. at 44-46. Plaintiff also testified he attempted to return to work as a painter or venture into maintenance after his surgery and therapy on his right leg, but he was unsuccessful. Tr. at 46-47. He reported he was fired because he was unable to perform his job tasks due to his new limitations. Tr. at 47-48.
Plaintiff testified he lived with his father, who cooked, cleaned, and shopped for him because he could not "get around good enough to do it" due to his leg. Tr. at 49. Plaintiff spent his days watching television, and explained he would elevate his leg to avoid cramping. Id. He suffered from carpal tunnel in his left hand. Id. Plaintiff testified he could not read or write, but he could recognize some words. Tr. at 50.
In response to the ALJ's inquiry as to how Plaintiff's inability to read and write "affected [his] ability to get any jobs," he responded, "[W]ell, it hasn't been too bad. I mean, I worked 25 years or better without reading." Tr. at 50-51. In response to the ALJ's inquiry as to whether he had any questions at the end of the hearing, Plaintiff inquired about the jobs discussed and asked how they accommodated for the issues with his right leg wherein the ALJ replied they were talking about a hypothetical individual, not him personally. Tr. at 134-35.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Karl S. Block Weldon reviewed the record and testified at the hearing. Tr. at 96-134. The VE categorized Plaintiff's PRW as a painter, DOT number 840.381-010, SVP of 6, performed as skilled work with medium to heavy exertion; chicken dresser, DOT number 525.687-070, SVP of 2, performed as unskilled work with light exertion; welder, DOT number 819.384-010, SVP of 6, performed with medium to heavy exertion; upholstery measurer, DOT number 780.384-010, SVP of 6, performed with medium exertion; and textile machine operator, DOT number 689.686-022, SVP of 2, performed with medium exertion. Tr. at 106-07.
The ALJ reviewed the VE's experience and confirmed he was familiar with psychological testing and results. Tr. at 108-09. The ALJ discussed the results of Plaintiff's MMSE-2, WAIS-IV, WRAT-4 tests, as well as the clinical interview with Dr. Moody, to ensure the VE was aware of Plaintiff's mental limitations, in addition to his physical restrictions, and to reconcile his ability to perform skilled work while being illiterate with a FSIQ score of 57. Tr. at 109-113; see also Tr. at 545-52. The VE, ALJ, and Plaintiff agreed he had been able to perform skilled work previously because he was able to learn the skills needed through apprenticeship-type training. Tr. at 113-21.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift up to twenty pounds occasionally; lift or carry up to ten pounds frequently; stand or walk for up to four hours in an eight-hour workday; sit for up to six hours in an eight-hour workday; use the upper body and extremities to push or pull bilaterally and frequently (including overhead); operate foot controls with the lower extremities bilaterally and occasionally; climb ladders, ramps, or stairs occasionally; balance with a handheld assistive device on uneven terrain or prolonged ambulation (walking more than 30 minutes at any one time) frequently; stoop frequently; crouch, kneel, or crawl occasionally; handle objects with gross manipulation bilaterally and frequently; finger with fine manipulation bilaterally and frequently; but should avoid all exposure to excessive vibrations, hazards, and unprotected heights and could not climb ropes or scaffolds. Tr. at 121-23. In addition, the ALJ added mental restrictions for one who is illiterate with basic math skills; has difficulty learning new tasks, as it was mentally exhausting and extremely time consuming; is limited to the performance of simple routine tasks; must perform in a work environment that is free of fast-paced production performance, but production work is allowed; and only involves simple work-related decisions with few changes, if any, that would only be introduced on a gradual basis. Tr. at 123-25.
The VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 125. The ALJ asked whether there were any other jobs in the national economy that the hypothetical person could perform. Id. The VE identified a produce weigher (DOT number 299.587-010), a cleaner (DOT number 323.687-010), and a folder (DOT number 789.687-058), all with an SVP of 2, light exertion required, and Reasoning, Math, and Language ("RML") levels of 1. The VE also testified there were 69,000, 410,000, and 219,000 jobs, respectively, available for these positions in the national economy. Tr. at 126-28.
The ALJ specifically requested all RML numbers for each position and confirmed the level of 1 was consistent with the education and non-exertional limitation that he requested the VE to consider. Tr. at 126-28. The undersigned notes the ALJ referred to a "Reading" level, but appeared to be referring to the "Reasoning" level as one's ability to read is encompassed within the "Language" level.
The ALJ modified the hypothetical to indicate an individual who lacked the ability to sustain concentration, persistence, and pace on a sufficient basis to perform simple routine tasks and who would be unable to successfully complete a 40-hour workweek. Tr. at 129. The VE agreed these restrictions would preclude all employment. Id. The VE explained employers typically allow breaks every two hours and an SVP of 2 means it may take up to 30 days to learn the position. Tr. at 129-34.
c. Investigators' Testimony
An investigation was conducted by the Cooperative Disability Investigations Unit regarding Plaintiff's alleged disability. Tr. at 560-67; 622-26. Senior Agent Don Titus ("Titus") and CDI Program Specialist Jeff Hart ("Hart") testified at the hearing regarding their investigations, and their reports were included as exhibits in the record. Tr. at 34, 38, 59-96, 560-68, 622-26.
Titus testified he interviewed Plaintiff on July 27, 2015, under a rouse that he was looking for a few individuals, showing their pictures and names to Plaintiff. Tr. at 59-67. Titus testified he did not observe Plaintiff walk with a cane, but he did observe a limp and acknowledged he leaned on a vehicle as they spoke approximately twenty feet outside his residence. Tr. at 59, 64-65, 68, 76, 78, 80, 86-87. Titus testified he could not recall whether a member of Plaintiff's family assisted him in reading the names below the individuals' pictures, and review of the video surveillance did not provide a definitive answer. Tr. at 69-70, 78, 84, 86-87. Titus testified the interview lasted approximately ten minutes. Tr. at 68, 81.
During examination by Plaintiff's attorney, it was revealed a cane prescription was not made until months later, in September 2015, and Plaintiff believed his brother assisted him in reading the names during the interview. Tr. at 90, 95. The undersigned notes the subsequent investigation report made in October 2016, in preparation for the hearing in December 2016, indicated Plaintiff was observed with a cane. Tr. at 623-24.
Hart testified he conducted background research for the investigation report, and he was present to assist in displaying the surveillance at the hearing. Tr. at 64, 89-90.
The undersigned notes the ALJ's decision inadvertently assigned paragraph five twice. Tr. at 21-22. However, the undersigned has adjusted the findings and conclusions of law to reflect paragraphs six through twelve accordingly.
In his decision dated February 1, 2017, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2019.
2. The claimant has not engaged in substantial gainful activity since November 30, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: intellectual disorder, carpal tunnel syndrome, fracture of the right lower extremity in 2012, illiteracy, syncope, osteoarthritis of multiple joints and obesity (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is illiterate in terms of reading and writing. He has basic math skills, and he understands basic cash transactions for everyday activities and daily living.
He can lift 20 pounds occasionally and lift/carry up to 10 pounds frequently. He can make cash transactions. He can stand or walk for up to four hours in an eight-hour workday. He can sit for six hours in an eight-hour workday. All of these exertional activities can be performed with the normal breaks allowed in an eight-hour workday. He can use his upper extremities to push and pull frequently and bilaterally, this includes overhead reaching. The operation of foot controls with the lower extremities can be performed occasionally and bilaterally. He can occasionally climb ladders but cannot climb ropes or scaffolds. He can occasionally climb ramps and stairs. He can frequently balance. He requires a hand-held assistive [device] with balancing; however, that device is only required for uneven terrain or prolonged ambulation, defined as walking more than 30 minutes at any one time. The claimant can frequently stoop; and occasionally crouch, kneel and crawl. Gross manipulation can be performed frequently and bilaterally. Fingering (fine manipulation) which involves items no smaller than the size of a paper clip can be done frequently and bilaterally. The claimant should avoid all exposure to excess vibration, i.e., someone operating a jackhammer in his vicinity. He should avoid all hazards, described as the use of moving machinery and exposure to unprotected heights.
It appears the claimant has difficulty learning new tasks and it is mentally exhausting for him and extremely time consuming. The
work he can do is limited to the performance of simple, routine tasks that must be performed in an environment free of any fast-paced production requirement; there can be production requirement, but cannot be fast paced. The work must involve simple work-related decisions; and there can be few, if any, changes in the workplace. If there are changes in the workplace at all, they should be introduced on a gradual basis.
6. In making this finding, I have considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 96-4p. I have also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.Tr. at 13-28. II. Discussion
7. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
8. The claimant was born on March 28, 1974 and was 40 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
9. The claimant is illiterate and is able to communicate in English (20 CFR 404.1564 and 416.964).
10. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
11. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
12. The claimant has not been under a disability, as defined in the Social Security Act, from November 30, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ committed reversible error by: (a) selectively extracting isolated evidence from the record which was unfavorable to Plaintiff, (b) failing to liberally construe the Social Security Act in Plaintiff's favor, (c) improperly interjecting his own medical opinion concerning the severity of Plaintiff's impairment, and (d) placing undue weight on Plaintiff's ability to perform household chores;
2) the ALJ committed reversible error by failing to assign substantial credibility to Plaintiff's testimony that he suffered from severe, disabling pain and his impairments so limited his capacity that he was unable to engage in substantial gainful activity on a regular and sustained basis;
3) the ALJ committed reversible error by posing inadequate hypothetical questions to the VE; and
4) the ALJ committed reversible error by finding Plaintiff could: (a) do light work, (b) occasionally climb ladders, (c) occasionally stoop, crouch, kneel, or crawl, and (d) work with a production requirement.
The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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 months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). "If the reviewing court has no way of evaluating the basis for the ALJ's decision, then 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
B. Analysis
1. Use of Cane
Throughout Plaintiff's various arguments, he asserts the ALJ neglected to consider medical evidence, such as a diagnosis of degenerative joint disease or findings of examining physicians regarding his ROM and gait, with other evidence that were consistent with his subjective complaints of pain and alleged limitations. [ECF No. 14 at 10, 15-16]. Plaintiff argues this oversight resulted in the ALJ's inadequate hypothetical posed to the VE and created an inaccurate RFC determination, providing he had the ability to perform light work, balance frequently, climb ladders, stoop, kneel, crawl, or crouch occasionally, and he "only needed the cane for prolonged ambulation" or on uneven terrain. Id. at 17-19.
The Commissioner counters substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints, his hypothetical posed to the VE, and his RFC assessment for a limited range of light work with minimal cane usage. [ECF No. 15 at 2, 10-17].
The Commissioner aptly notes SSR 16-3p superseded SSR 96-7p in March 2016, and, thus, the term credibility is not used in decisions rendered after that date. [ECF No. 15 at 13]. However, this change does not excuse the ALJ from determining whether Plaintiff's statements are consistent with the entire record and explaining his conclusion for same after considering the relevant factors.
A claimant's RFC represents the most he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a) 416.945(a). It must be based on all the relevant evidence in the case record and should account for all of the claimant's medically-determinable impairments. Id. The RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996).
"Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms." Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). "First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms." Id. at 866 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). "Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities." Id. (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). The second determination requires the ALJ to consider "whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the plaintiff's] statements and the rest of the evidence, including [his] history, the signs and laboratory findings, and statements by [his] treating or nontreating source or other persons about how [his] symptoms affect [him]." 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).
The ALJ is not to "evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled." SSR 16-3p, 2016 WL 1119029, (superseding SSR 96-7p for all decisions issued on or after March 28, 2016, as noted in the Federal Register); 82 Fed. Reg. 49462 n.27, 2017 WL 4790249 (explaining "we are eliminating the use of the term 'credibility' from our sub-regulatory policy, as our regulations do not use this term). "Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone," the ALJ is to "carefully consider any other information" about the claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
See Bright v. Comm'r, No. 6:17-1431-CMC-KFM, 2018 WL 4658494, at *10 n.4 (D.S.C. Sept. 5, 2018), report and recommendation adopted sub nom. Bright v. Comm'r, No. 6:17-1431-CMC, 2018 WL 4635834 (D.S.C. Sept. 27, 2018) ("Regardless, the court observes that SSR 16-3p discontinues use of the term credibility, but the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record." (internal quotations and citations omitted)).
In evaluating the non-objective evidence, the ALJ is to consider the claimant's "statements about the intensity, persistence, and limiting effects of symptoms" and should "evaluate whether the statements are consistent with objective medical evidence and other evidence." SSR 16-3p, 2017 WL 4790249 (instructing adjudicators "to consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms"). "Other evidence that we will consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in our regulations." Id.; see also 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) (listing factors to consider such as ADLs, the location, duration, frequency, and intensity of pain or other symptoms, factors that precipitate and aggravate the symptoms, treatment an individual receives or has received for relief of pain or other symptoms, any measures other than treatment an individual uses or has used to relieve pain or other symptoms, and any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms).
As related to Plaintiff's knee impairment, the ALJ provided the following RFC:
He can lift 20 pounds occasionally and lift/carry up to 10 pounds frequently. . . . He can stand or walk for up to four hours in an eight-hour workday. He can sit for six hours in an eight-hour workday. All of these exertional activities can be performed with the normal breaks allowed in an eight-hour workday. . . . The operation of foot controls with the lower extremities can be performed occasionally and bilaterally. He can occasionally climb ladders but cannot climb ropes or scaffolds. He can occasionally climb ramps and stairs. He can frequently balance. He requires a
hand-held assistive [device] with balancing; however, that device is only required for uneven terrain or prolonged ambulation, defined as walking more than 30 minutes at any one time. The claimant can frequently stoop; and occasionally crouch, kneel and crawl.Tr. at 21.
The ALJ found Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, but determined his statements "concerning the intensity, persistence and limiting effects" of his symptoms were "not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [his] decision." Tr. at 23.
The ALJ recited medical evidence from the record reflecting Plaintiff's doctor visits, complaints of pain, results of diagnostic tests, and treatment for his leg pain. Tr. at 24-25. The ALJ concluded:
The above medical evidence certainly provides a sufficient basis upon which to find the claimant's right knee impairment has been a severe impairment. However, the treatment records do not show a disabling right knee impairment. Also, diagnostic testing of record does not show a disabling knee impairment. While the claimant has complained of right knee pain, and observations by medical examiners describe his gait as being antalgic, there is not evidence that his right knee pain, or the physical condition of his right knee, has resulted in his inability to ambulate effectively, as that term is defined in 1.00B2c.[] Other than his subjective testimony, the evidence of record does not show ostensible proof of his being unable to ambulate effectively. Moreover, examinations by medical professionals have not produce[d] evidence establishing an inability to ambulate effectively. There
is however evidence of record that a cane was ordered for the claimant. However, there is no evidence showing the extent to which the cane is necessary for effective ambulation.Tr. at 25. The ALJ found the RFC accounted for Plaintiff's "right knee impairment by relegating him to light work" with "significant postural limitations." Id. The ALJ further found the RFC "accounts for the need of a cane for use on uneven terrain and prolonged ambulation." Tr. at 25-26.
This appears to be a typographical error, as the definition is provided in Listing 1.00B2b.
In formulating the RFC, the ALJ focused on whether Plaintiff was unable to ambulate effectively as required to meet a listing. "Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 1.00B2b(1). The Listing goes on to state that "[i]neffective ambulation is defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." Id.
Listing 1.00B2b(2) provides:
To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.20 C.F.R. § Pt. 404, Subpt. P, Appx. 1 (effective Jan. 17, 2017, through Mar. 26, 2017).
The ALJ is correct that the medical records indicate Plaintiff ambulated with a cane, not "a hand-held assistive device(s) that limits the functioning of both upper extremities," such as two crutches, two canes, or a walker as specified in Listing 1.00B2b. However, the ALJ did not explain how the evidence supported Plaintiff's cane was "only required for uneven terrain or prolonged ambulation, defined as walking more than 30 minutes at any one time," resulting in an ability to "stand or walk for up to four hours in an eight-hour workday," "occasionally climb ladders," or "frequently balance." Tr. at 21, 26.
At the hearing, when asked how his leg affected his ability to work, Plaintiff testified he could not do the things he did prior to breaking his leg, such as climbing ladders, lifting heavy items, and standing or walking without a cane. Tr. at 22, 44. In response to the ALJ's inquiry as to whether he used "the cane when [he was] up and about around [his] house," he stated he could go from room to room in his home, a double-wide trailer, without his cane. Tr. at 44-45, 48. However, Plaintiff clarified he could only walk approximately ten yards without needing his cane. Tr. at 45-46. He testified he may fall down ten times during an eight-hour period, used walls for balancing when walking short distances at home, did not cook or clean because he could "not get around well enough," and he generally elevated his leg when sitting in a chair to relax it. Tr. at 22, 48-49.
As acknowledged by the ALJ, the "medical evidence certainly provides a sufficient basis upon which to find the claimant's right knee impairment has been a severe impairment." Tr. at 25. Indeed, the medical records cited by the ALJ and other evidence recognize Plaintiff's complaints of pain and limitations due to his knee. See, e.g., Tr. at 520 (stating Dr. Tankersley noted a McMurray's test was "very positive" and resulted in pain superiorly and laterally, as well as Plaintiff's knee problems, if left untreated, could limit his job selection to light to medium duty positions "at best" on May 28, 2014); 537 (stating Plaintiff's right knee was tender and his ROM was limited, as well as the treating physician diagnosed knee sprain and provided him with pain medication and crutches on June 5, 2015); 547 (stating Plaintiff reported to Dr. Moody that he could not climb ladders, carry large paint buckets, or get on his knees to paint so he was unable to continue working as a painter and he could no longer perform chores or shop for groceries due to difficulty with standing and mobility on June 16, 2015); 556-57 (noting Plaintiff reported to Dr. Parke that his right knee pops and hurts when he straightens it, walks for any length of time, or stands for more than ten minutes, as well as Dr. Parke noted Plaintiff experienced pain with movements of his right knee, there was moderate crepitus upon flexion, and his right SLR test was limited to 60 degrees on June 26, 2015); 577-79 (stating Dr. Sutter noted Plaintiff was using a cane to walk, diagnosed knee pain, and referred Plaintiff to an orthopedist for his knee pain on September 9, 2015); 589, 619-20 (noting Plaintiff's visit to Upstate Bone and Joint upon referral by Dr. Sutter and documenting Plaintiff's ROM was painful, he had mild patellofemoral crepitus throughout the arc of motion, tenderness to palpation over the lateral femoral condyle, and mild peripatellar tenderness, as well as resulting in a cane prescription for ambulation assistance on September 30, 2015); 609-14, 616-18 (reflecting Plaintiff's evaluation at Foothills Orthopaedics for right knee pain, receipt of a cortisone injection for the pain, and diagnosis of degenerative joint disease in his right knee on September 13, 2016).
Appropriately, the ALJ did not reference gaps in Plaintiff's treatment for support that the pain was not as severe or limiting as he alleged because the record reflects he was indigent, which was not contested. See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (holding the ALJ erred in determining the plaintiff's impairment was not severe based on her failure to seek treatment where the record reflected she could not afford treatment); see also Tr. at 278 (requesting an expedited hearing because Plaintiff could not afford his medications and his father could not support him), 279 (submitting second request), 281-84 (submitting third request), 572 (noting Plaintiff was denied treatment for impairments elsewhere "due to no insurance/funds"); 598 (visiting Pickens County Free Medical Clinic for chest pains); 612 ("This patient is indigent and this visit is no charge. He can get x-rays of the knee performed at Easley Hospital at no charge to him so he will pursue this for future treatment of the knee.").
Yet, the ALJ appeared to focus only on the fact that "the treatment records do not show a disabling knee impairment" or Plaintiff's "inability to ambulate effectively, as that term is defined in 1.00B2[b][2]." Tr. at 25. The ALJ did not point to any inconsistencies or explain why Plaintiff's testimony regarding his knee pain or inability to walk without a cane were not supported by the record. Of note, if Plaintiff had been unable to ambulate effectively as defined in Listing 1.00B2b, which requires loss of use for both upper extremities due to pushing a walker or using two canes, then he would meet a listing and automatically qualify as disabled. The fact Plaintiff does not meet a listing does not mean his complaints of pain or allegations that he needs to walk with a cane, using one hand, is inconsistent with the record, and its impact is relevant to the RFC analysis.
See 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 1.00(J)(4) (noting Appendix One (Listing of Impairments) of the regulations, provides "[t]he requirement to use a hand-held assistive device may also impact on the individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling").
In addition, the ALJ's explanation in this section of his decision focuses upon objective medical evidence despite the explicit instruction that an ALJ is not to "evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled." SSR 16-3p. The ALJ acknowledged Plaintiff was prescribed and used a cane, but indicated there was no medical evidence to support Plaintiff's inability to ambulate effectively, as defined in the Listing, and concluded there was no evidence showing the extent to which the cane was necessary. Tr. at 25. Indeed, the Commissioner seizes upon this approach and argues "[h]ere, the objective medical evidence was inconsistent with Plaintiff's testimony that he could not perform a range of light work." [ECF No. 15 at 14].
In Lewis v. Berryhill, the Court of Appeals for the Fourth Circuit ("Fourth Circuit") agreed with the plaintiff's contention that "the ALJ improperly discounted her subjective evidence of pain based solely on the lack of objective evidence of pain intensity." 858 F.3d 858, 866 (4th Cir. 2017). The Fourth Circuit noted, "[a]ccording to the regulations, the ALJ 'will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.'" Id. (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). Thus, the Fourth Circuit concluded the plaintiff's "subjective evidence of pain intensity cannot be discounted solely based on objective medical findings." Id.
Furthermore, the Fourth Circuit concluded "the ALJ failed to explain in his decision what statements by [the plaintiff] undercut her subjective evidence of pain intensity as limiting her functional capacity." Id. (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) ("A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling," including "a discussion of which evidence the ALJ found [consistent] and why, and specific application of the pertinent legal requirements to the record evidence.")); see also SSR 96-8p, 1996 WL 374184, at *7 (explaining that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)").
Moreover, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." SSR 96-8p. The Fourth Circuit has held "remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
Likewise, here, without additional explanation, the undersigned is unable to meaningfully review this portion of the ALJ's decision that states the RFC accounted for Plaintiff's "right knee impairment by relegating him to light work" with "significant postural limitations" and "account[ed] for the need of a cane for use on uneven terrain and prolonged ambulation," despite his testimony and other evidence to the contrary. Thus, the undersigned is unable to evaluate whether the RFC assessment regarding Plaintiff's cane usage or ability to perform a range of light work is supported by substantial evidence.
The Commissioner's attempt to argue support for the ALJ's decision by citing to Plaintiff's function report from May 2015 and the fact he was seen without a cane in July 2015 ignores he was not prescribed a cane for ambulation assistance until September 2015, he was seen with a cane in October 2016, and, furthermore, these items were not discussed as a reason for finding Plaintiff's allegations inconsistent with the record by the ALJ. [ECF No. 15 at 11, 16-17]; Tr. at 24-26. In addition, the Commissioner's assertion Plaintiff testified he did not need the cane for short distances belies the fact he specified a short distance was no more than ten yards, and, moreover, was not cited by the ALJ to support his decision either. [ECF No. 15 at 11, 14, 17]; Tr. at 44-46, 24-26. "[P]rinciples of agency law limit this Court's ability to affirm based on post hoc rationalizations by the Commissioner's lawyers." Robinson ex rel. M.R. v. Comm'r of Soc. Sec., No. 0:07-3521-GRA, 2009 WL 708267, at 12* (D.S.C. 2009). "[R]egardless [of] 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 his decision and confine our review to the reasons supplied by the ALJ." Id. (citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)).
Finally, the Commissioner points to Plaintiff's visit to Foothills Orthopaedics in September 2016 to support his right knee was normal, but this argument ignores he was diagnosed with degenerative joint disease and received a cortisone injection in his knee to address his pain at the same visit. [ECF No. 15 at 11]; Tr. at 613, 616-18.
In light of the foregoing, the undersigned recommends the court find the ALJ did not evaluate Plaintiff's pain and other symptoms in accordance with the relevant ruling, regulations, and Fourth Circuit precedent, rendering it unable to determine whether his decision is supported by substantial evidence and warranting remand of this case.
2. Additional Allegations of Error
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)) and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered or the ALJ's findings or conclusions were not adequately explained, the undersigned declines to address Plaintiff's additional allegations of error as they are interwoven with the RFC assessment.
Although neither party raises the issue, the undersigned notes one position provided by the VE requires the ability to perform medium work, not light, with higher reasoning and language levels than the RFC allows, resulting in an apparent conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). Compare Tr. at 127 (providing a cleaner position, DOT number 323.687-010, and describing it as light work with RMLs of 1), with DOT, 1991 WL 672782 (describing this position as requiring the ability to perform medium work with Reasoning and Language levels of 2, but a Math level of 1). Of additional concern, the VE listed the position of a folder, DOT number 789.687-058, despite the RFC's restriction to using "upper extremities to push and pull frequently and bilaterally, this includes overhead reaching," and the position requires constant reaching. See 1991 WL 681264. Thus, the ALJ may not have been able to rely upon the VE's testimony regarding these positions without clarification of the possible conflicts. Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015) ("An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on this testimony rather than the [DOT]."). However, any error in this regard is harmless as at least one position provided by the VE, a produce weigher, does not appear to raise a conflict with the assessed RFC, VE's testimony and the DOT. Thus, the ALJ was able to rely upon that testimony for substantial evidence to support his conclusion Plaintiff was able to perform alternative work. See 1991 WL 672639; see also Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming an ALJ's decision because there was "no question but that he would have reached the same result notwithstanding his initial error").
3. Remedy
Plaintiff requests a reversal or a remand of the ALJ's decision, and the Commissioner asserts only a remand is an appropriate remedy in this case. [ECF No. 14 at 19; ECF No. 15 at 17-18].
"[T]he district court reviews the record to ensure that the ALJ's factual findings are supported by substantial evidence and that its legal findings are free of error." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d 319, 322 (4th Cir. 2013)). "If the reviewing court decides that the ALJ's decision is not supported by substantial evidence, it may affirm, modify, or reverse the ALJ's ruling 'with or without remanding the cause for a rehearing.'" Id. (quoting 42 U.S.C. § 405(g)). "If the reviewing court has no way of evaluating the basis for the ALJ's decision, then 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Id. (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); contra Breeden v. Weinberger, 493 F.2d 1002, 1011-12 (4th Cir. 1974) (reversing for award of benefits where case was quite old, record had no need to be reopened, and the case had already been on appeal once before).
As this case does not present the rare circumstances to support outright reversal and it requires the ALJ to provide an explanation of the basis for his decision, the undersigned recommends the appropriate action is to remand the case. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. October 30, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).