Opinion
7:23-CV-968-FL
04-16-2024
CONNIE P. JONES, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' briefs filed pursuant to the Supplemental Rules for Social Security Actions. [DE-8, -10]. Claimant Connie P. Jones (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). The time for filing responsive briefing has expired, and the matter is ripe for adjudication. Having carefully reviewed the administrative record and the briefs submitted by the parties, it is recommended that the final decision of the Commissioner be reversed and the matter be remanded for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on December 26, 2019, alleging disability beginning November 1, 2017, later amended to November 3, 2020. (R. 15, 115-18, 210). The claim was denied initially and upon reconsideration. (R. 15, 95-114). A telephonic hearing before an Administrative Law Judge (“ALJ”) was held on July 20, 2022, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 15, 36-66). On September 21, 2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-35). On March 6, 2023, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
Claimant correctly observes that the ALJ did not acknowledge Claimant's amended alleged onset date in the decision but suggests no resulting prejudice, Pl.'s Br. [DE-8] at 23, and the undersigned independently discerns no harm from this error.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is
“evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 2 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred by failing to properly analyze and find fully persuasive the opinions of the treating pain management physician, Dr. Francis Pecoraro. Pl.'s Br. [DE-8] at 19-32.
The page number from the CM/ECF footer is referenced where it differs from the document's internal page number.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful activity since the alleged onset date. (R. 17-18). Next, the ALJ determined Claimant had the severe impairments of degenerative disc disease of the lumbar spine, non-compressive lumbar radiculopathy, chronic obstructive pulmonary disease, and essential hypertension, as well as the non-severe impairments of nephrolithiasis, chronic kidney disease, stage II (mild) and hyperlipidemia. (R. 18). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in no limitation in understanding, remembering, or applying information and a mild limitation in interacting with others, adapting or managing oneself, and concentrating, persisting, or maintaining pace. (R. 18-19). At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19-20).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light workwith the following additional limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
[W]hile she can sit for up to six hours in an eight hour workday, she must be able to alternate positions for up to five minutes after every 30 minutes of sitting. She can stand and/or walk for a total of four hours in an eight-hour workday. This represents the ability to stand and/or walk for 30 minutes at one time, then needing
to sit down for up to 30 minutes before standing or walking again. She can push, pull, and operate foot controls with the right lower extremity frequently. She can occasionally climb, balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to unprotected heights and moving mechanical parts. She can tolerate occasional exposure to dust, odors, fumes, and other pulmonary irritants, as well as humidity and wetness.(R. 20-25). In making this assessment, the ALJ found Claimant's statements regarding the intensity, persistence, and limiting effects of her symptoms were not fully supported. (R. 21). At step four, the ALJ concluded Claimant was unable to perform her past relevant work. (R. 25). At step five, the ALJ recognized that Claimant's age category changed to “an individual of advanced age” on March 31, 2022, and determined that Claimant was disabled as of that date pursuant to application of Medical-Vocational Rule 202.02. (R. 26-27). Nevertheless, considering Claimant's age, education, work experience, and RFC, the ALJ determined that prior to March 31, 2022, there were other jobs that existed in significant numbers in the national economy that Claimant could perform. Id.
V. DISCUSSION
Claimant contends that the ALJ erred in not limiting her to sedentary work based on the opinions of her treating pain management provider, Dr. Pecoraro. Pl.'s Br. [DE-8] at 24-32. The Commissioner contends the ALJ properly evaluated Dr. Pecoraro's opinions. Def.'s Br. [DE-10] at 6-14.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). The applicable regulations provide that the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [Claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions or prior administrative medical finding(s) will be”; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that “a medical source who has received advanced education and training to become a specialist may be more persuasive”; and (5) “other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5). The most important factors are supportability and consistency. Id. § 404.1520c(a).
A. March 23, 2021 Opinion
Dr. Pecoraro completed a form on March 23, 2021, indicating that Claimant could not perform light work for eight hours a day, five days a week on a regular, continuous, sustained, and reliable basis due to severe degenerative disc disease and neuroforaminal narrowing at ¶ 5-S1. (R. 584). The ALJ, finding the opinion to be persuasive, agreed the Claimant could not perform a full range of light work and imposed limitations on standing and walking, as well as a requirement for alternating positions. (R. 24). The ALJ did not, however, impose any restriction on the light work lifting requirement of “no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds,” 20 C.F.R. § 404.1567(b), which Dr. Pecoraro opined exceeded Claimant's ability.
Claimant argues that the ALJ's finding that Dr. Pecoraro's opinion was persuasive should have resulted in a conclusion that Claimant was unable to lift the weight necessary to perform light work. In Ezzell v. Berryhill, the Fourth Circuit found error where the ALJ gave significant weight to a medical opinion that indicated the claimant required a cane and was severely impaired in the ability to move about but then implicitly rejected that opinion “without any discussion” by concluding that the claimant failed to demonstrate the inability to effectively ambulate on a sustained basis. 688 Fed.Appx. 199, 201 (4th Cir. 2017). Here, however, the ALJ sufficiently explained that Claimant could not perform a “full range” of light work due to the need to alternate positions and for a limitation in standing and walking. (R. 24). Furthermore, “[e]ven when an ALJ gives significant weight to a medical opinion, ‘an ALJ is not bound to accept or adopt all the limitations set forth therein.'” DeWotan v. Kijakazi, No. 2:21-CV-20-RJ, 2022 WL 4507816, at *9 (E.D. N.C. Sept. 23, 2022) (citing Joseph v. Kijakazi, No. 5:20-CV-381-FL, 2021 WL 6066466, at *7 (E.D. N.C. Sept. 21, 2021), adopted by, 2021 WL 6064844 (E.D. N.C. Dec. 22, 2021)). Finally, the ALJ found that Claimant should avoid lifting and carrying anything more than 20 pounds occasionally and ten pounds frequently, consistent with Dr. Smith's opinion, which constitutes substantial evidence supporting the ALJ's determination. Accordingly, the court can trace the ALJ's reasoning, and the ALJ did not err in assessing Dr. Pecoraro's March 23, 2021 opinion.
B. August 25, 2022 Opinion
Dr. Pecoraro completed a form on August 25, 2022, stating that Claimant was “100% Totally Disabled” and “unsafe in any working environment” due to lumbar spondylosis and lumbar radiculopathy and that she experienced severe to extreme pain. (R. 859). The opinion specified, in relevant part, that Claimant could work no hours in a day, could not stand or sit for more than 15 minutes at a time, could not lift more than five pounds occasionally, and could lift no weight frequently. Id. The ALJ found this opinion to be “not persuasive” because it was “not supported by his own treatment records or exams by other providers, as discussed above.” (R. 24).
Claimant contends the ALJ's analysis of the August 25, 2022 opinion was insufficient where there is unaddressed objective evidence supporting Dr. Pecoraro's opinion and Claimant's functional limitations due to severe chronic pain. The court agrees. The ALJ acknowledged Claimant's repeated complaints to her providers of pain ranging from a seven to a nine out of ten, as well as a lumbar MRI indicating non-compressive radiculopathy on the right due to foraminal stenosis. (R. 22-23, 593, 598, 602-03, 610, 800, 808-09). The ALJ also noted that Claimant was not a surgical candidate, and it was recommended that she continue with pain management. (R. 22, 598). Claimant tried to manage her pain with injections, but they provided only short-term relief, and she was unable to take pain medications due to renal disease. (R. 22-23, 600, 800-01). A spinal cord stimulator was recommended but placement was delayed due to cost. (R. 23, 595, 703, 771, 800-01).
The ALJ noted Claimant's continued severe pain when discussing the treatment notes of Dr. Pecoraro and others, but then found Dr. Pecoraro's opinion that Claimant was limited to less than sedentary work by her pain to be unsupported. (R. 24). The ALJ's explanation that Dr. Pecoraro's opinion is not supported by his own treatment records or exams by other providers, without any citation to or discussion of the evidence, is conclusory and insufficient to build the requisite “logical bridge” from the evidence to the conclusion that Dr. Pecoraro's opinion was not persuasive. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding the ALJ's explanation that “the objective evidence or the claimant's treatment history did not support the consultative examiner's” medical opinion was incomplete and precluded meaningful review because the ALJ failed to specify what evidence or aspects of treatment he was referring to); Kathleen P. v. O'Malley, No. 4:22-CV-00125, 2024 WL 1070981, at *17 (W.D. Va. Mar. 11, 2024) (finding error where “the ALJ did not mention any specific evidence from the record, let alone explain how Dr. Greene's opinion was ‘inconsistent with' any relevant record evidence”), adopted by, 2024 WL 1316227 (W.D. Va. Mar. 27, 2024).
To the extent the ALJ relied on some physical examinations being within normal limits as evidence inconsistent with Dr. Pecoraro's opinion, the court cannot find this constitutes substantial evidence to support the ALJ's determination in light of the other conflicting evidence not addressed. “Resolving conflicting evidence with reasonable explanation is an exercise that falls within the ALJ's responsibility and is outside the court's scope of review.” See Lasley v. O'Malley, No. 4:23-CV-03260-BHH-TER, 2024 WL 1363814, at *5 (D.S.C. Mar. 12, 2024) (citing Mascio v. Colvin, 780 F.3d 632, 637-40 (4th Cir. 2015)), adopted sub nom. Cynthia L. v. O'Malley, 2024 WL 1349219 (D.S.C. Mar. 29, 2024). Here, there is evidence from an MRI that Claimant suffered from foraminal stenosis and radiculopathy, which Dr. Pecoraro cited as the source of Claimant's severe pain, which the ALJ acknowledged but failed to address in evaluating Dr. Pecoraro's opinion. The court cannot follow the ALJ's reasoning in finding Dr. Pecoraro's opinion unpersuasive given the lack of explanation. Accordingly, it is recommended that this matter be remanded for further consideration of Dr. Pecoraro's August 25, 2022 opinion.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the final decision of the Commissioner be reversed and the matter be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until April 30, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 166 F.2d 841, 846-47 (4th Cir. 1985).
Submitted.