Opinion
C/A No.: 1:17-cv-02566-BHH-SVH
12-28-2018
Shane Lee Lawson, 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 that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On May 20, 2014, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on November 1, 2012. Tr. at 208-15. His applications were denied initially and upon reconsideration. Tr. at 95-96, 122-23, 129-33 and 138-49. On August 4, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Ann G. Paschall. Tr. at 34-54 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 24, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-26. 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 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 22, 2017. [ECF No. 1].
On July 28, 2016, Plaintiff amended his alleged onset date of disability to June 7, 2013. Tr. at 223.
B. Plaintiff's Background and Relevant Medical History
1. Background
Plaintiff was 26 years old at the time of the hearing. Tr. at 39. He completed the eighth grade. Tr. at 40. He has no past relevant work ("PRW"). Tr. at 38. He alleges he has been unable to work since June 7, 2013. Tr. at 223.
2. Medical Evidence Submitted to the ALJ
On January 12, 2012, Plaintiff was seen at the emergency care center ("ECC") at Self Regional Healthcare for back and side pains. Tr. at 429-39. Gregory Givens, M.D. ("Dr. Givens"), diagnosed a sprain of the lumbar region and noted overexertion from repetitive movement. Tr. at 431. Plaintiff reported his back pain had begun the day before when he was carrying plywood. Tr. at 433. Plaintiff was prescribed medication and discharged. Tr. at 434-35.
On February 9, 2012, Plaintiff was seen at the ECC for complaints of back pain, cough, and congestion. Tr. at 440-48. Dr. Givens diagnosed lumbago and malaise and fatigue. Tr. at 442. Plaintiff was prescribed medication and discharged. Tr. at 446-48.
On May 17, 2012, Plaintiff presented to the ECC with complaints of migraines and back pain. Tr. at 458-67. Plaintiff was diagnosed with sciatica, provided Valium and Morphine, and discharged. Id.
On May 22, 2012, Plaintiff presented to the ECC with complaints of back and hip pain. Tr. at 468-75. The notes from Plaintiff's examination indicated he had chronic back pain and made multiple emergency room trips for pain. Tr. at 472. Plaintiff was diagnosed with lumbago, prescribed medication, and discharged. Tr. at 473.
On June 2, 2012, Plaintiff presented to the ECC with complaints of back pain. Tr. at 476-84. He was diagnosed with a lumbosacral sprain, medicated, and referred to a spine center. Tr. at 478, 482, 484.
On June 11, 2012, Plaintiff presented to ECC with low back pain. Tr. at 485-89. A magnetic resonance imaging ("MRI") provided the following recorded impressions: congenitally short pedicle length; grade 1 L5-S1 spondylolisthesis at approximately 2.5 dash 3 mm, foraminal disc abuts the exiting L5 nerve roots, left greater than right; mild lower lumbar facet osteoarthritis, generalized spondylosis, mild curvature of the spine. Tr. at 488-89. Plaintiff was diagnosed with spondylosis lumbosacral. Tr. at 487.
On June 13, 2012, Plaintiff presented to the ECC with complaints of left side pain and back pain. Tr. at 490-98. Plaintiff was diagnosed with lumbago with acute and chronic pain and prescribed Percocet. Id.
On June 25, 2012, Plaintiff presented to the ECC with complaints of back pain. Tr. at 499-506. The notes from Plaintiff's examination indicate his pain was chronic. Tr. at 504. Plaintiff was given Tylenol and Flexeril and instructed to follow up with the spine center. Id.
On July 2, 2012, Plaintiff presented to the ECC with complaints of back pain. Tr. at 507-14. Plaintiff was diagnosed with lumbago, prescribed medication, and directed to follow up with his scheduled appointment at the spine center. Tr. at 512.
On July 19, 2012, Plaintiff presented to Self Regional Healthcare for an x-ray due to back pain. Tr. at 515-18. The following impressions were recorded: "L5 spondylolysis secondary to bilateral L5 spondylolysis. Increasing deformity is shown with flexion view." Tr. at 518.
Also, on July 19, 2012, Gregory S. McLoughlin, M.D. ("Dr. McLoughlin"), with the Carolina Neurosurgery and Spine Center, evaluated Plaintiff. Tr. at 785-90. Dr. McLoughlin's physical examination of Plaintiff revealed the following:
On examination the patient was quite uncomfortable in the seated and standing position. No kyphosis, no scoliosis. Quite marked tenderness to the lumbar spine and thoracic spine even to superficial touch. His gait was antalgic and shuffling. No cranial nerve deficits. Motor strength in the upper and lower extremities is normal. Sensation is preserved in the major dermatomes of the arms and legs. Straight leg raise testing was negative bilaterally. No clonus was elicited.Tr. at 786. Dr. McLoughlin agreed with the impressions of the radiologist who had reviewed Plaintiff's recent MRI, affirming Plaintiff "ha[d] spondylolytic spondylolisthesis at L5 being a Grade 1. There is left greater than right foraminal stenosis." Id. Dr. McLoughlin further indicated Plaintiff's symptoms were consistent with axial back pain due to his spondylolisthesis. Id. Due to his young age, Dr. McLoughlin preferred to avoid surgery and referred him to pain management. Id. Dr. McLoughlin further indicated Plaintiff may ultimately require a fusion of the lumbosacral junction. Id.
On August 4, 2012, Plaintiff presented to the ECC with complaints of back pain. Tr. at 519-39. Plaintiff indicated his pain was worse with movement and his symptoms, which he described as shooting and radiating pain, had developed gradually over four weeks. Id. Plaintiff was diagnosed with chronic back and lumbosacral pain, provided Decadron and Toradol, prescribed Flexeril, and recommended back exercises. Id.
On August 8, 2012, Plaintiff presented to the ECC with complaints of back pain. Tr. at 540-57. Plaintiff reported his pain was chronic, and he ran out of his non-narcotic pain medication. Tr. at 544. He was diagnosed with lumbago with chronic pain and prescribed Tramadol-Acetaminophen. Tr. at 542, 545.
On August 10, 2012, Plaintiff was seen by Barbara C. Ray, M.D. ("Dr. Ray"), at Doctor's Care for complaints of low back pain. Tr. at 388. Dr. Ray noted Plaintiff appeared to be in pain, but he had good range of motion ("ROM"). Id. Dr. Ray also noted Plaintiff could do toe and heel-to-toe walks, but he could not do a heel walk. Id. Dr. Ray recorded that Dr. Lal said Plaintiff had "pars defect" and may need surgery. Id. Dr. Ray prescribed Norco 10, ibuprofen 800 mg, and Robaxin 750 mg. Tr. at 389. Dr. Ray recommended Plaintiff follow up with a pain clinic as soon as possible. Tr. at 388.
On August 20, 2012, Plaintiff was seen at Doctor's Care in Greenwood. Tr. at 385. He reported no relief from his constant lower back pain. Id. Plaintiff also indicated a poor reaction to Robaxin. Id. Plaintiff was prescribed Norco 10 and Skelaxin 800 mg. Tr. at 386. It was noted Plaintiff had not been to pain management and needed a primary doctor. Tr. at 385.
A week later, Plaintiff reported the Skelaxin was not working, and his provider adjusted the medication prescription to Flexeril. Tr. at 384.
On August 29, 2012 Plaintiff was seen at Doctor's Care in Greenwood with complaints of anxiety and back pain. Tr. at 382. Plaintiff reported Flexeril was not helping and was making him sleepy. Id. Plaintiff was diagnosed with chronic back pain. Id. He was prescribed Norco 10. Tr. at 383. A note indicated Plaintiff had an appointment with pain management the next month due to "pars defect for five years" and narcotics were not to be prescribed from the Doctor's Care. Tr. at 382.
On September 10, 2012, Plaintiff visited Doctor's Care in Greenwood with complaints of ongoing left hip and back pain. Tr. at 380. Plaintiff was prescribed Soma 350 mg and Tramadol 50 mg. Tr. at 381.
On September 30, 2012, Plaintiff visited Doctor's Care in Greenwood with complaints of chronic lower back pain. Tr. at 378. Plaintiff was prescribed Soma 350 mg and referred to a pain management clinic. Tr. at 377-79.
On November 14, 2012, Plaintiff began treatment with Pain Management Associates at Dr. McLoughlin's direction and Sybil Reddick, M.D. ("Dr. Reddick"), evaluated Plaintiff. Tr. at 395; 390-94. At his appointment, Plaintiff reported his pain had begun approximately five years earlier, but his symptoms had been worsening. Tr. at 395. Plaintiff indicated his symptoms were localized to his back, and his pain was achy and sharp. Id. Plaintiff rated his pain as 9/10. Id. Plaintiff stated his pain increased when he bent, walked, or stood for long periods of time. Tr. at 397. Plaintiff indicated he had worked as a carpenter and at a chicken farm, but quit both jobs due to increased pain from standing too long. Id.
Dr. Reddick noted mild tenderness in the left lumbar paraspinal area and moderate tenderness in both the right lumbar paraspinal and midline lumbar, with mild restriction of the lumbar flexion and extension. Tr. at 396. Dr. Reddick further noted Plaintiff's lumbar lateral flexion and thoracic rotation were mildly restricted bilaterally with normal strength, tone, and stability and tenderness to palpation ("TTP") began at L-4 level to S-1 and over the bilateral, lower lumbar paraspinals. Id. Dr. Reddick noted both of Plaintiff's hips were restricted in all directions. Id. Dr. Reddick also noted both straight leg raise ("SLR") tests were positive for low back pain. Id. As to Plaintiff's posture, Dr. Reddick indicated it was altered due to asymmetric leg length, such that Plaintiff's left leg was longer than his right. Id. Dr. Reddick noted Plaintiff's gait was intact and he did not use mobility aids. Id. Dr. Reddick assessed lower back pain. Id. A urine drug screen indicated positive for tetrahydrocannabinol ("THC"), Tr. at 398-400, which Plaintiff admitted to smoking. Tr. at 397. When Dr. Reddick advised Plaintiff narcotics would not be prescribed if he was using THC, Plaintiff indicated he would try to discontinue using THC. Id. Dr. Reddick recommended injections, specifically in the right facet at the L4-5 level and referral to Self Pain Clinic. Id.; Tr. at 401. Plaintiff was instructed to return in two weeks. Id.
On November 20, 2012, Plaintiff presented to the ECC with complaints of back pain. Tr. at 558-71. The physical examination notes indicated Plaintiff walked without difficulty, but had bony tenderness over the lower lumbar area. Tr. at 565. Plaintiff was diagnosed with lumbago with chronic pain and prescribed Tramadol. Tr. at 559, 566.
On November 28, 2012, during his follow-up examination at Pain Management Associates, Plaintiff reported his pain was the same. Tr. at 403, 406-408. He indicated he was unable to obtain an injection because he did not have transportation to the doctor's office. Tr. at 405. Plaintiff reported discontinued use of THC and tested negative. Tr. at 405, 407. Dr. Reddick recommended the Medicaid Van, scheduled an injection with Dr. Blackwell, and prescribed Lortab 7.5/500 mg. Id.; Tr. at 402.
On December 12, 2012, Plaintiff returned to Pain Management Associates for a follow-up appointment with Dr. Reddick. Tr. at 409. Plaintiff reported his pain was the same and his medications were working, but the effects did not last long enough. Id. Dr. Reddick refilled Plaintiff's Lortab prescription. Tr. at 411-12.
On December 20, 2012, Plaintiff received a lumbar injection at Pain Management Associates, without complications. Tr. at 413-15.
On January 22, 2013, and February 19, 2013, Plaintiff had follow-up appointments at Pain Management Associates, at which he continued to complain of lower back pain. Tr. at 416-21. Plaintiff reported his medications helped ease his pain level. Id. Plaintiff's Lortab and Hydrocodone prescriptions were refilled. Id. It was noted Plaintiff's medication regimen was "currently working well." Id.
On March 19, 2013, Plaintiff was seen at Pain Management Associates for lower back pain, but tested positive for THC and, per Dr. Reddick's instructions, he was not prescribed any opiates. Tr. at 422-28.
On April 18, 2013, Plaintiff presented to the ECC after he was involved in a car accident. Tr. at 602-84, 609. Matthew Logan, M.D. ("Dr. Logan"), ordered multiple computed tomographic ("CT") scans and x-rays for Plaintiff's chest, head, neck, arm, hand, and abdomen. See, e.g., Tr. at 629-30, 649-65. CT imaging showed "[o]ld bilateral pars defects with grade 1 subtle spinal listhesis[,]" but there was no evidence of acute trauma, fracture or dislocation, and exams were negative. Tr. at 675-82. Plaintiff was discharged with prescriptions for hydrocodone-acetaminophen, Flexeril, and ibuprofen 800 mg. Tr. at 616.
On May 29, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center with complaints of back and hip pain after being seen the year prior for spinal listhesis. Tr. at 782. Sumeer Lal, M.D. ("Dr. Lal"), noted Plaintiff's progressive problems with lower back pain and bilateral hip pain with infrequent radiculopathy. Id. Plaintiff reported epidural steroid injections had failed and inquired if surgery would be necessary. Id. Dr. Lal assessed lower back pain, lumbar canal stenosis, lumbar disc degeneration, and spondylolisthesis. Tr. at 783-84. He noted Plaintiff would need a new MRI for possible surgery consideration. Tr. at 784.
Plaintiff presented to Self Regional Healthcare on June 7, 2013, for an MRI due to lumbar disc displacement, which revealed:
Moderate sized left paracentral disc herniation at the L5/S1 level in combination with mild broad-based disc bulging and mild posterior facet hypertrophy, resulting in severe left neural foraminal narrowing with impingement upon the exiting left L5 nerve root, and mild right neural foraminal narrowing. No significant spinal canal stenosis is seen at this level or at any other level in the lumbar spine. No other level of neural
foraminal narrowing is demonstrated. No other level of disc bulge, protrusion, or herniation is shown in the lumbar spine.Tr. at 688, 685-94.
On June 11, 2013, Plaintiff presented to the ECC with complaints of back pain. Tr. at 695-716. Plaintiff reported he was a patient of Dr. Lal, who was considering surgery. Tr. at 702. He further indicated his chronic back pain had been "out of control lately." Id. He stated his pain worsened when lying flat or standing up straight. Id. The physical examination by Matthew Haldeman, M.D. ("Dr. Haldeman"), noted Plaintiff's SLR and Flexion, Abduction, and External Rotation ("FABER") tests were positive on the right side, but stated he was ambulatory with a steady gait upon discharge. Tr. at 703. Plaintiff was diagnosed with chronic pain and lumbago and prescribed Flexeril and hydrocodone-acetaminophen. Tr. at 697-98, 703.
On June 22, 2013, Plaintiff presented to the ECC due to complaints of lower back pain with shooting pain into his legs that was worsened by movement. Tr. at 717-37, 724. Plaintiff indicated he was out of pain medication, and his appointment with the spine center had been rescheduled to mid-July. Tr. at 723-24. It was noted Plaintiff could walk without assistance, but with some difficulty. Tr. at 724. Plaintiff had an adequate ROM, but bony tenderness over L-5. Tr. at 725. Plaintiff was discharged with a prescription for hydrocodone-acetaminophen. Tr. at 720, 726.
On June 24, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center with complaints of pain in his lower back and left hip. Tr. at 778-81. Dr. Lal recorded the following assessment: "MRI show[ed] a disc herniation to the left at L5-S1 also evidence of degenerative spondylolisthesis, L5-S1, and bilateral foraminal narrowing at L5, S1, as well as evidence of fairly significant issues, developed with disc degeneration, and disc space collapse." Tr. at 778. Dr. Lal spoke with Plaintiff about performing an L5-S1 posterior lumbar interbody fusion. Id.
On June 28, 2013, Plaintiff presented to the ECC with complaints of back pain. Tr. at 738-58. The notes indicated Dr. Lal was called due to Plaintiff's pain and surgery scheduled on July 16, 2013, and Dr. Lal's office staff advised they would manage pain on any patient scheduled for surgery with Dr. Lal. Tr. at 747. Plaintiff was diagnosed with lumbago and given a dose of pain medication while in the emergency room, but he was not discharged with a prescription. Tr. at 740.
On July 16, 2013, Plaintiff underwent an L5-S1 posterior lumbar interbody fusion by Dr. Lal. Tr. at 791-93.
On August 5, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 776. Plaintiff complained of pain, particularly an unusual amount in his left hip. Id. Plaintiff also indicated he was having trouble walking due to left leg pain. Id. Dr. Lal noted Plaintiff appeared comfortable in a seated position, but clearly had difficulty with his left leg. Id. Dr. Lal removed the staples and recommended x-rays. Id.
On August 7, 2013, Plaintiff's lumbar spine was x-rayed, and the following impressions were recorded: "Satisfactory postoperative appearance following L5-S1 posterior instrumented fusion." Tr. at 759-62.
On August 8, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 774. Plaintiff reported he was "still in a lot of pain," primarily in his left hip. Id. Plaintiff also reported the pain in his leg was better, but he still used a cane to ambulate. Id. Dr. Lal noted Plaintiff appeared comfortable in a seat position, but palpation of the trochanteric region resulted in "fairly significant pain." Id. Dr. Lal also noted no significant abnormalities and good screw placement based on his review of Plaintiff's x-ray, stating "[t]he x-rays do not suggest any significant problems however of course that doesn't mean that he is not having issues." Tr. at 775. Dr. Lal started Plaintiff on Neurontin and Medrol Dosepak and opined Plaintiff might have trochanteric bursitis, which would require treatment. Id.
On August 23, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 772. Plaintiff complained of back pain, numbness, and hip and left leg weakness. Id. Dr. Lal noted Plaintiff reported pain in his hip and with ambulation, as well as painful screws. Id. Dr. Lal also noted Plaintiff appeared comfortable in a seated position, but pressure on his left leg, ambulation, and internal and external rotation caused severe pain. Id. Dr. Lal noted Plaintiff would have an MRI of his lumbar spine, and he would ask orthopedics to evaluate his hip. Id. Dr. Lal assessed lower back pain, lumbar canal stenosis, lumbar disc degeneration, and spondylolisthesis. Tr. at 772-73.
On September 20, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center with complaints of bilateral hip pain and possible sacroiliac ("SI") joint pain. Tr. at 770. Plaintiff indicated he had a right hip injection that alleviated some of his pain, but he continued to have problems on his left side. Id. Dr. Lal noted Plaintiff appeared comfortable in a seated position, but continued to use a walking stick. Id. Based on his review of the x-rays and MRI of Plaintiff's lumbar spine, Dr. Lal indicated there was no significant pathology that would be of concern, but there still was grade 1 spondylolisthesis. Id. Dr. Lal indicated Plaintiff continued to see an orthopedic doctor, and he would request evaluation by a chiropractic therapy practice regarding his SI joints. Tr. at 771.
On December 2, 2013, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 768. Plaintiff reported cramping in his thighs and pain in his hips and lower back. Id. Plaintiff was no longer walking with a cane and stated his pain was improving overall. Id. Dr. Lal noted Plaintiff "look[ed] better than he did before" and was "ambulating better and quicker." Id. Dr. Lal recommended Plaintiff attend tobacco and smoking cessation counseling and try Neurontin. Tr. at 769. Dr. Lal noted Plaintiff "state[d] that overall he [was] improving but still ha[d] a way to go" and Dr. Lal "mention[ed] to him that it could take him one year to 18 months . . . for a fusion to take." Id.
On January 27, 2014, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 766. Plaintiff complained of falling, lower back and hip pain, and cramps in his legs. Id. Plaintiff indicated his pain medication was wearing off too quickly. Id. Dr. Lal noted Plaintiff had an MRI postoperatively and numerous plain x-rays done that had not shown significant pathology. Id. Dr. Lal also noted Plaintiff continued to have a relatively abnormal gait and it was a "difficult examination," but he did not have any obvious neurological deficits and appeared comfortable in a seated position. Id. Dr. Lal indicated the most recent x-rays looked good, and he was "not entirely convinced as of yet that [Plaintiff] ha[d] significant pathology." Id. Dr. Lal prescribed hydrocodone-acetaminophen. Tr. at 767.
On March 31, 2014, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 763-64. He noted Plaintiff reported improvement since the surgery, but continued to have mid-back pain into his legs, cramping, and increasing pressure when trying to sleep. Id. Plaintiff reported the medicine was helpful for a few hours, but then the pain returned. Id. Dr. Lal noted Plaintiff had difficulty walking, although he had no evidence of any focal deficit in the proximal and distal muscle groups and appeared comfortable in a seated position. Id. Dr. Lal also noted Plaintiff reported a burning sensation when walking. Id. Dr. Lal further noted Plaintiff had been discharged from pain management in the past due to the use of methamphetamines. Id. According to Dr. Lal's notes, Plaintiff admitted to having continued to smoke, despite repeated attempts to get him to stop. Id. A radiologist gave the following findings and impression of an x-ray of Plaintiff's lumbar spine:
FINDINGS - . . . Posterior spinal rods and pedicle screws at the L5-S1 level and intervertebral disc implant are present. The L5 pedicle screws appear to have retracted in the interval. The degree of anterolisthesis of L5 on S1 has increased. The intervertebral disc implant might protrude into the spinal canal slightly. Vertebral body are maintained.Tr. at 764. Dr. Lal disagreed with the radiologist's impression of the x-ray and ordered a CT scan of the lumbar spine for further review. Id. He assessed low back pain and spondylisthesis. Id.
IMPRESSION - L5 pedicle screws appear to have retracted in the interval. Spondylolisthesis has increased.
On July 7, 2014, Plaintiff presented to the Carolina Neurosurgery and Spine Center with complaints of back and hip pain. Tr. at 794-95. Plaintiff reported his leg gave out on him and caused him to fall down some steps. Id. Dr. Lal opined he felt Plaintiff had reached optimal improvement, but indicated he would like to explore the area where Plaintiff had surgery. Id.
Dr. Lal noted Plaintiff had some improvement after his surgery, but it was "suboptimal" and, "although periodically he would say he [had] less leg pain and less back pain, there were days where he was having very severe radicular symptoms," but Dr. Lal "felt very strongly there [was] still some issues going on" and "subsequent test[ing] suggested that there was a possibility that there was some loosening of the screws." Tr. at 800.
On July 15, 2014, Dale Van Slooten, M.D. ("Dr. Van Slooten"), provided a physical residual functioning capacity ("RFC") assessment. Tr. at 80-82, 91-92. He opined Plaintiff was limited to lifting, carrying, pushing, or pulling twenty pounds occasionally and ten pounds frequently and he could walk, stand, or sit for six hours in an eight-hour workday. Tr. at 81. Dr. Van Slooten also opined Plaintiff could climb ramps, stairs, ladders, ropes, or scaffolds, balance, kneel, crouch, and crawl occasionally. Id.
On August 19, 2014, Plaintiff underwent exploratory surgery. Tr. at 796-814. Dr. Lal reported:
Paraspinal muscles dissected off of L3-L4 and the old hardware. It was clear that the screws that were placed in L5 were loose. We removed them. The S1 screws were in solid. There was no evidence of any loosening; however, I elected to take them out and use larger screws. We removed scar tissue, and then I did a complete L4 laminectomy, followed the L5 nerve root out as well,
and there was clearly a large amount of granulation tissue that had accumulated on the lateral recess, on the left more than the right. We were able to decompress the L5 nerve roots. Confirmed that the L4 nerve roots were decompressed as well. The sac was centrally decompressed. We then copiously irrigated the wound.Tr. at 801-02. Dr. Lal reported no complications from the surgery, but he did indicate Plaintiff "had a suboptimal improvement, continued to have some problems with left and right hip pain, left much significantly worse, although he did say that he had some improvement approximately 50%." Tr. at 803. He continued, "Overall it was felt that he was not doing well. Unfortunately because of prior substance abuse issues he was not allowed to go to any pain center and we continued to follow him. However because of the poor recovery we continued to do serial imaging." Id. Dr. Lal noted "subsequent x-rays and CT suggested possibility of loosening of hardware" and he "decided to take [Plaintiff] back to surgery and do an exploration," as "there was some spinal stenosis developing and some lateral recess stenosis." Id. Dr. Lal noted Plaintiff had some pain improvement "although because of his chronic pain issues may be [sic] have more of a chronic situation." Tr. at 804.
On September 1, 2014, Plaintiff presented to Self Regional Healthcare for an evaluation of his wound. Tr. at 815-20. Plaintiff could ambulate without assistance, but with some difficulty. Tr. at 816. The exam notes indicated Plaintiff's wound was healing well. Tr. at 818.
On September 10, 2014, Plaintiff presented to the Carolina Neurosurgery and Spine Center for post-operative staple removal. Tr. at 823-24. Plaintiff was instructed to wear his brace and keep his follow-up appointment. Id.; Tr. at 808.
On October 6, 2014, Plaintiff presented to the Carolina Neurosurgery and Spine Center for a follow-up appointment. Tr. at 821-22. Plaintiff reported the pain in his lower back and right leg was gone, but he had lower back discomfort and experienced increasing difficulty with left thigh pain and left hip discomfort. Id. Dr. Lal noted Plaintiff looked more comfortable when ambulating, but was still dependent on his cane, and recommended increased activity. Id.
On October 23, 2014, George Walker, M.D. ("Dr. Walker"), provided a physical RFC assessment upon reconsideration. Tr. at 106-07, 118-19. He opined Plaintiff was limited to lifting, carrying, pushing, or pulling twenty pounds occasionally and ten pounds frequently and he could walk, stand, or sit for six hours in an eight-hour workday. Id. Dr. Walker also opined Plaintiff could climb ramps, stairs, ladders, ropes, or scaffolds, balance, kneel, crouch, and crawl occasionally. Id.
On December 8, 2014, Plaintiff presented to Advanced Spine and Neurosurgical Associates for a follow-up appointment with Dr. Lal. Tr. at 826-27. Plaintiff reported lower back pain that radiated down into his hips and bilateral leg weakness. Id. Plaintiff indicated his symptoms had been exacerbated by a fall and he continued "to have a lot of difficulties with back pain," but he could walk better than he could prior to surgery. Id. Dr. Lal noted Plaintiff did not have any focal deficit in his lower extremities or any evidence of upper motor neuron signs. Id. Dr. Lal also noted Plaintiff had an improved gait and was able to sit better, but he continued to use a cane, and Dr. Lal was still uncertain whether he had issues with his hips. Id. Dr. Lal indicated Plaintiff had been seen by orthopedics and requested lumbar spine x-rays. Tr. at 826-27.
On March 9, 2015, Plaintiff presented to Advanced Spine and Neurosurgical Associates for a follow-up appointment. Tr. at 828-29. Plaintiff reported numbness, leg weakness, and lower back, bilateral hip, and thigh pain. Id. Plaintiff also reported he was "slightly better," but "continu[ed] to have problems." Id. Plaintiff indicated the majority of pain he experienced was in his left hip, but Dr. Lal noted the orthopedic doctors did not feel he had any pathology that would require intervention. Id. Dr. Lal also noted Plaintiff appeared comfortable in a seated position, but he looked uncomfortable transitioning from sitting to standing and continued to use a cane. Id. While Plaintiff had no neurological deficits, Dr. Lal indicated he had difficulty with his gait. Id. Dr. Lal noted Plaintiff would likely need a referral to pain management in the future, but he would continue to monitor Plaintiff over the next few months. Tr. at 829.
On April 27, 2015, Dr. Lal filled out a Physician's Statement regarding Plaintiff for the South Carolina Department of Social Services. Tr. at 825. Dr. Lal indicated Plaintiff could not engage in any type of employment or job preparation and should not bend, lift, twist, push, or pull for approximately four months. Id.
On October 12, 2015, Plaintiff was evaluated at Uptown Family Practice as a new patient with complaints of chronic thoracic back pain and depression since his wife passed away from asphyxiation. Tr. at 837-39, 932-34. He reported headaches from Hydrocodone and itching from Oxycodone. Tr. at 837. Veronica Hinkle, R.N. ("Nurse Hinkle"), assessed back pain, insomnia, depression with anxiety, acid reflux, and itching. Tr. at 839. Plaintiff refused the suggested medication of Tylenol with codeine for pain. Id.
On October 14, 2015, Plaintiff presented to Advanced Spine and Neurosurgical Associates and Carolina Neurosurgery and Spine Center with complaints of lower back pain, radiating down into his right hip. Tr. at 830-32, 846-49. Plaintiff also reported pain between his shoulder blades, which Dr. Lal indicated was likely from pushing down on his cane. Id. Dr. Lal noted Plaintiff was not having significant neck pain or any radiculitis. Id. Dr. Lal indicated Plaintiff appeared comfortable in a seated position, but had difficulty ambulating and favored his right leg. Id.
Dr. Lal noted he had Plaintiff's hip evaluated and felt "there was some bursitis," but, after an injection, "[orthopedics] felt there was nothing else that required any further treatment." Id. Dr. Lal further reported he was "not entirely convinced that [Plaintiff] may not have some hip pathology, but [he deferred] to orthopedics." Tr. at 831. Dr. Lal expressed a belief Plaintiff had chronic nerve issues associated with the spondylolisthesis and likely would require chronic pain management. Id. Dr. Lal further indicated if Plaintiff were to receive disability, for which Dr. Lal believed he was a good candidate, then it might be ideal to obtain a spinal cord stimulator to further alleviate his pain. Id.
The findings of an x-ray taken that day provided "[p]ost[-]operative changes [were] seen from L4 through S1. The normal lumbar lordosis is preserved. No acute fracture or spondylolisthesis is identified. The vertebral body heights and disc spaces [were] grossly normal. Endplate osteophytosis is seen. Mild dextroscoliosis is seen." Tr. at 831, 836.
On October 31, 2015, Plaintiff to presented to ECC after being involved in a motor vehicle accident. Tr. at 853-76. The assessment and diagnosis during Plaintiff's visit indicated pain in the following areas: cervical spine, thoracic back, shoulder, and posterior neck, lower back, left clavicle, and acromioclavicular joint, upper abdominal wall, left and right anterior thigh, and knees. Tr. at 856, 859. Additional examination notes indicated Plaintiff had a diffuse spinal TTP. Tr. at 858. A CT scan of Plaintiff's cervical spine revealed:
There is no evidence of fracture or dislocation. There is straightening of expected lordosis which can be seen related to positioning but can also be seen related to muscle spasm/splinting from pain in the appropriate clinical setting. The patient is seen to be in a cervical collar. The exam otherwise is normal. AP alignment, vertebral body height, disc space height, the articular joints, the bony spinal canal, the bony neural foramina and the paravertebral soft tissues are normal. The visualized lung apices are clear.Tr. at 870. A CT scan of Plaintiff's chest revealed no evidence of acute trauma, but there was subtle spinal curvature, lower thoracic minial chronic anterior wedging, and lower thoracic chronic endplate changes. Tr. at 873. A CT scan of Plaintiff's abdomen and pelvis revealed no acute trauma and
[c]hronic bone findings include subtle rightward curvature of the lumbar spine, chronic at least mild appearing joint space narrowing in both hips right greater than left, L4-5 through L5-S1 posterior instrumented fusion, L4 partial laminectomy, L5 laminectomy, L5-S1 grade 1 chronic subluxation, L5-S1 interbody spinal implant, L5-S1 chronic neural foramen encroachment, L1-2 mild degenerative endplate changes and no evidence of hardware failure or loosening. The bones otherwise are negative.Tr. at 875. Plaintiff was discharged with pain medication and muscle relaxers after doctors confirmed he did not have any acute traumatic injuries. Tr. at 859.
On November 12, 2015, Plaintiff was evaluated at Uptown Family Practice. Tr. at 840-42, 929-31. He reported he had been in a motor vehicle accident on October 31, 2015, which hurt his neck and back. Id. Plaintiff reported he had an appointment with a pain clinic the following month and had gone to the chiropractor. Id.; Tr. at 850-51. Plaintiff was wearing a back brace, using a cane to walk, and prescribed clorazepate. Tr. at 841-42, 931.
On December 2, 2015, Plaintiff sought treatment as a new patient at the pain clinic at Self Regional Healthcare. Tr. at 903-19, 909. Plaintiff reported pain in his back, legs, and neck that was always present at a 9/10 level and increased when driving in a car, walking long distances, and bending or sitting for extended periods. Tr. at 913. He also reported headaches, extremity weakness, heartburn, depression, and anxiety. Tr. at 914. Y. Eugene Mironer, M.D. ("Dr. Mironer"), diagnosed Plaintiff with chronic low back, lower extremity pain, and lumbar radiculopathy. Tr. at 909. His physical exam revealed a decreased ROM in Plaintiff's neck and back. Tr. at 916. Dr. Mironer noted his intent to change to long-acting opioids to manage Plaintiff's pain. Id. Dr. Mironer further indicated Plaintiff was not a candidate for any injections, nor was he a candidate for spinal cord stimulation because of his insurance. Id.; Tr. at 918. Dr. Mironer prescribed Duragesic patches and Oxycodone. Tr. at 911.
On December 16, 2015, Plaintiff went for a follow-up visit at the pain clinic at Self Regional Healthcare, with a reported pain level of 8/10. Tr. at 890-902. Plaintiff was examined by Jill Gilchrist, N.P. ("Nurse Gilchrist"). Tr. at 898. Plaintiff reported the Duragesic patches would not stay on his skin, and, as a result, he wasted several patches. Tr. at 897. He then took more Oxycodone than was prescribed, which meant he had only one tablet remaining at the time of his visit. Tr. at 897. Plaintiff reported moderate to severe pain, and Nurse Gilchrest noted she discussed the concept of pain reduction to the point where he could exercise and become more active to improve his health and quality of life. Id. Nurse Gilchrist noted Plaintiff was in slight distress and walked with cane and a wide, abnormal gait. Tr. at 898. Nurse Gilchrist discontinued the Duragesic patches and Oxycodone and started Plaintiff on MS Contin. Id. Dr. Mironer diagnosed low back pain and lumbar region radiculopathy. Tr. at 893.
On January 11, 2016, Plaintiff presented to Advance Spine and Neurosurgical Associates for an appointment with Dr. Lal. Tr. at 833-35. Plaintiff reported lower back, upper thigh, heel, bilateral leg, and right hip pain. Tr. at 833. Plaintiff also reported his symptoms were 50% better than pre-operatively, but he still required the use of a cane. Id. Dr. Lal noted Plaintiff would need a new pain management clinic because "he had some falling out with pain management as he did not want to [take] morphine," and he seemed to be better with a muscle relaxant. Id. Dr. Lal also noted x-rays of his lumbar spine were ordered and he was awaiting referral to another pain center. Tr. at 834.
On January 20, 2016, Plaintiff was evaluated at Uptown Family Practice. Tr. at 843-45, 926-28. Plaintiff's primary complaint was anxiety and reported his medication had not helped. Id. He indicated he was waiting for a referral to pain management for his back pain and for an appointment with a mental health counselor since November 2015. Id. Plaintiff was referred to a mental health center and a pain clinic. Tr. at 927. Plaintiff was prescribed clonazepam. Id.; Tr. at 844.
On April 4, 2016, Plaintiff presented to the pain clinic at Self Regional Healthcare for a follow-up appointment. Tr. at 877-89, 885. He was seen by Nurse Gilchrist again. Tr. at 886. Plaintiff reported he had been unable to perform much activity, and Nurse Gilchrist noted he wore a back brace and used a cane. Tr. at 886. Plaintiff reported the MS Contin made him drowsy, but it also relieved his pain. Tr. at 885-86. Gilchrist noted, due to the drowsiness caused by the medication, she would adjust it to be taken at bedtime for one week and then increase to twice a day as needed. Tr. at 885-86. Nurse Gilchrist noted Plaintiff had been re-referred back to Dr. Lal, "as he was hoping to have additional surgery to correct his back pain," and Dr. Lal saw him in January, February, and March, but "re-referred him back to this clinic to manage his medication regimen," as "Dr. Lal informed him that he would not do any additional surgery until he transition[ed] to Medicare and would be a candidate for the spinal cord stimulator." Tr. at 885. Dr. Mironer diagnosed Plaintiff with low back pain, radiculopathy in the lumbar region, and post laminectomy syndrome. Tr. at 880.
On May 6, 2016, Plaintiff was seen for a follow-up appointment with Dr. Lal at Advanced Spine and Neurosurgical Associates. Tr. at 935-42. Dr. Lal noted Plaintiff had a "long history of low back pain and radiculopathy who underwent a 2 level re[-]exploration instrumentation and fusion" and "although better he is having chronic pain." Id. Dr. Lal also noted Plaintiff was referred to pain management, and "[had chronic problems and use[d] a cane." Id. He refilled Plaintiff's pain medications, noted there were no significant changes (difficulty with leg gait secondary to pain antalgic gait), and discharged him from his facility. Id.
X-rays of Plaintiff's spine showed "[r]eversal of the normal cervical lordosis without evidence of significant degenerative change" and a "[s]table postoperative spine" with "mild degenerative disc disease at L3-L4." Tr. at 936, 939-42.
On June 6, 2016, Plaintiff presented to Uptown Family Practice for a follow-up visit. Tr. at 922-24. Plaintiff reported he had been taking 240 hydrocodone pills each month and 90 clonazepam pills, but quit taking paroxetine. Id. Plaintiff indicated he was scheduled to go to pain management on June 24, 2016, and Dr. Lal would no longer prescribe further medication for his pain. Id. Plaintiff was re-referred to a mental health center and prescribed Paroxetine. Tr. at 923.
On June 24, 2016, Plaintiff was seen at Piedmont Comprehensive Pain Management Group upon referral of Dr. Lal. Tr. at 920. Plaintiff was initially seen by Raechele Simpson, A.P.R.N. ("Nurse Simpson"). Tr. at 920-21. Nurse Simpson noted Plaintiff was referred for consultation due to chronic low back pain that radiated into the lower extremities and ranged between 6/10 to 10/10. Tr. at 920. Nurse Simpson also noted Plaintiff ambulated with a cane. Tr. at 920. On physical examination, Plaintiff was TTP of the lumbar paraspinous muscles, SLR tests were positive for low back pain, mild pain was produced with flexion, extension, and rotation, and his muscle strength was 3/5 in the lower extremities. Tr. at 921. Eric Loudermilk, M.D. ("Dr. Loudermilk"), joined Nurse Simpson during the examination and formulated a treatment plan. Id. It was noted, due to Plaintiff's insurance, his treatment options were limited, but he had previously discussed undergoing spinal cord stimulation with Dr. Lal, who indicated he would not perform this surgery until Plaintiff began receiving disability. Tr. at 920-921. It was noted "[o]nce his disability is approved, we will have more options to treat his chronic pain" and "[a] spinal cord stimulation will be considered when his disability case has been approved." Tr. at 921. Plaintiff was prescribed Norco 10/325 mg, Neurontin 300 mg, and Lexapro 20 mg. Id. Plaintiff was assessed with lumbar post laminectomy syndrome with chronic low back pain radiating to bilateral lower extremities. Id.
On June 29, 2016, Plaintiff was seen at Self Regional Healthcare for injuries to his ankles and right wrist that were sustained during a fall. Tr. at 943-57. Plaintiff was diagnosed with right ankle sprain, right wrist sprain, intervertebral disc disorders with myelopathy and spinal stenosis in the lumbar region, he was medicated, and discharged. Tr. at 945, 951.
On July 21, 2016, Plaintiff was seen by Dr. Loudermilk for a follow-up appointment. Tr. at 969. Dr. Loudermilk noted Neurontin had caused Plaintiff's legs to swell, so he prescribed Topamax instead and refilled his Norco prescription, noting he would continue his Paxil and Klonopin for depression and anxiety. Id. Dr. Loudermilk also noted Plaintiff was attempting to obtain health insurance coverage that would provide him with more pain management options. Id. He assessed lumbar post laminectomy syndrome with chronic pain in the lower back and both legs due to radiculopathy. Id.
3. Medical Evidence Submitted to the Appeals Council
Plaintiff presented the following evidence to the Appeals Council after the ALJ's unfavorable decision:
The undersigned notes this evidence is attached to Plaintiff's brief as Exhibit A because it was not included in the administrative record. [ECF No. 15-1].
A treatment note dated August 19, 2016, reflects Plaintiff presented to the Piedmont Comprehensive Pain Management Group for a follow up and refill of his medications. [ECF No. 15-1 at 6]. Nurse Simpson noted Plaintiff had tolerated the switch to Topamax well since his last visit and he "feels it is helping." Id. She noted Plaintiff did not currently have health insurance, but he was "trying to get health insurance to allow him more treatment options" and he reported "doing well." Id. The assessment revealed lumbar post laminectomy syndrome with chronic pain in the lower back and both legs due to radiculopathy. Id.
A physician questionnaire by Dr. Loudermilk dated October 1, 2018, reflects Plaintiff began monthly office visits on June 24, 2016, he was diagnosed with lumbar post laminectomy pain, and his prognosis was poor, with the condition expected to last at least twelve months. [ECF No. 15-1 at 2-5]. Dr. Loudermilk noted, during a typical workday, Plaintiff would experience "pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks constantly." Id. at 3. He also noted Plaintiff was "[i]ncapable of even 'low stress' jobs." Id. at 4. Dr. Loudermilk opined Plaintiff could walk less than one city block without rest or severe pain and sit or stand for approximately thirty minutes at a time, but only stand or walk for less than two hours and sit for four hours during an eight-hour workday. Id. He also opined Plaintiff would need to be able to walk every thirty minutes for ten minutes and required a job that would allow unscheduled breaks to be taken "very often" and permit shifting positions at will from sitting, standing, or walking. Id. at 5. Dr. Loudermilk noted Plaintiff needed to use a cane while walking or standing, could occasionally lift or carry twenty pounds or less, occasionally look down or up, and rarely twist, stoop, crouch, and climb stairs. Id. Dr. Loudermilk estimated Plaintiff would likely be absent from work due to his impairment or treatment more than four days per month and noted the symptoms or limitations reported had been present since approximately 2014. Id.
A treatment noted dated October 26, 2016, reflects Plaintiff presented to the Piedmont Comprehensive Pain Management Group and saw Dr. Loudermilk. [ECF No. 15-1 at 7]. Dr. Loudermilk noted Plaintiff had been compliant with his prescriptions since beginning treatment in June 2016 and the medications improved his quality of life. Id. Dr. Loudermilk adjusted Plaintiff's Topamax by increasing the dose taken at night and noted they would continue with his current pain management. Id. He assessed lumbar post laminectomy syndrome with chronic intractable pain in the lower back and legs due to radiculopathy. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on August 4, 2016, Plaintiff testified he was born on April 4, 1990, and was 26 years old. Tr. at 39. He stated he lived in a double- wide mobile home with his two children, ages five and six, and his brother. Tr. at 39, 45. He testified he completed eighth grade before dropping out of school. Tr. at 40. He had a driver's license, but difficulty driving more than 35 miles due to numbness in his back and cramps in his legs. Id.
Plaintiff testified he used a back brace and cane since his first back surgery in August 2013. Tr. at 40-41. He explained this surgery had provided some relief until he fell, which made a screw loose, and then he underwent a second surgery. Tr. at 49-50. His second surgery was in July 2014, but he still had pain in the middle of his back and down his legs with numbness and tingling in his legs and feet. Tr. at 41-42. He also had a slight pain in his left shoulder and neck. Tr. at 42-43. Plaintiff was left handed, but alternated using the cane between hands due to pain in his shoulder. Tr. at 43. Plaintiff testified he was in pain management, but explained Dr. Lal had discussed his intention to perform a procedure for a spinal cord stimulator if he received Medicare and Dr. Loudermilk seemed to agree with this plan. Id., Tr. at 48-49. In addition to his medications, he used cold packs for an hour, three times a day, to help relieve pain. Tr. at 46, 50.
Plaintiff testified he recently attended Beckman Mental Health for post-traumatic stress disorder after his fiancée and mother of his children passed away. Tr. at 46-47. He stated he had dreams about it and panic or anxiety attacks that caused him to breathe heavily. Tr. at 47. He explained he would suffer from attacks often before he was prescribed medication, but the medication reduced them to three times or less per week and lasted 30 to 45 minutes. Id. He also testified he had migraines four or five times a week, but took medication for them. Tr. at 43-44.
Plaintiff testified he could sit for 20 to 25 minutes before needing to stand or stretch and could walk for up to 30 minutes before needing to rest. Tr. at 44. He stated he could stand for 25 to 30 minutes, but would have to rock back and forth to take the pressure off each leg. Tr. at 44-45. He testified he could lift or carry 15 pounds without causing pain. Tr. at 45. Plaintiff said he spent his day in a recliner or on the couch watching his kids in their playroom, but his brother lived with him and helped watch them as well. Tr. at 45-46. He did not do household chores and did not go out of the house. Tr. at 45. Plaintiff testified he had to lay down half of the day or more due to pain and to stretch out his muscles to prevent cramping. Tr. at 48. He testified he had a difficult time focusing and concentrating, such that he could only read for 30 minutes. Tr. at 50. He said he did not sleep much at night because he could not get comfortable and often slept an hour or two during the day. Tr. at 46. He testified he did not have problems bathing or dressing, although some days he needed help putting on a shirt. Tr. at 43.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Robert E. Brabham, Sr., reviewed the record and testified at the hearing. Tr. at 51-54. The ALJ described a hypothetical individual of Plaintiff's age, education, and experience who was limited to light work, that is, he could lift 10 pounds frequently, 20 pounds occasionally, sit, stand, or walk up to six hours each in an eight-hour workday, and occasionally balance, climb stairs, stoop, crouch, kneel, and crawl, with no use of ladders or exposure to dangerous machinery and unprotected heights. Tr. at 51. The ALJ inquired whether there would be jobs that the individual could perform. Id. The VE testified the hypothetical individual could perform work as a production inspector, Dictionary of Occupational Titles ("DOT") number 529.687-114, light and a specific vocational preparation ("SVP") of 2, with 200,000 jobs in the national economy; a packer and packager (packing line worker), DOT number 753.687-038, light and SVP of 2, with 400,000 jobs available; medical dresser (surgical-dressing maker), DOT number 689.685-130, light and SVP of 2, with 400,000 jobs available. Tr. at 51-52.
The ALJ inquired whether these positions would still be available if the hypothetical individual, maintaining all the factors in the original, also needed to change positions between sitting and standing every thirty minutes while remaining at the work station. Tr. at 52. The VE responded the same jobs would be available based on his experience as to what they required. Id.
The ALJ posed a third hypothetical for the same individual who, as a result of chronic pain, could not maintain attention and focus or stay on task for two hours at time, such that he required more than the usual number of breaks allowed during an eight-hour workday. Tr. at 53. The VE testified, based on his experience, no jobs would be available. Id.
The ALJ posed a fourth hypothetical of an individual who could not consistently complete a regular workweek and would miss three or more days of work per month. Id. The VE responded this limitation would eliminate all jobs. Tr. at 53-54.
2. The ALJ's Findings
In her decision dated October 24, 2016, 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, 2014.
2. The claimant has not engaged in substantial gainful activity since June 7, 2013, the amended onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine 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 [] requires the ability to alternate positions between sitting and
standing as frequently as every 30 minutes while remaining at the work station. He is able to occasionally balance, climb stairs, stoop, crouch, kneel, and crawl. However, he cannot climb ladders and should have no exposure to dangerous machinery or unprotected heights.Tr. at 13-20. II. Discussion
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 4, 1990[,] and was 22 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).
8. The claimant has a marginal education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
10. 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)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from November 1, 2012, 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 failed to comply with SSR 96-7p and 20 C.F.R. § 404.1529 in rejecting Plaintiff's subjective allegations of his symptoms and limitations;
2) the Appeals Council improperly failed to consider new and material evidence submitted by Plaintiff's treating physician, Dr. Loudermilk, in violation of 20 C.F.R. § 404.970(b); and
3) the ALJ ignored the VE's testimony that there was no work he was capable of performing when all of his limitations were considered.
The Commissioner counters that substantial evidence supports the ALJ's findings, the ALJ committed no legal error in her decision, and the Appeals Council was correct in its determination.
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, she 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. Evaluation of Symptoms
Plaintiff argues the ALJ failed to properly apply the factors contained in SSR 96-7p and 20 C.F.R. § 404.1529 that govern evaluation of his symptoms and limitations. [ECF No. 15 at 27-30].
The Commissioner responds substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints and asserts the ALJ appropriately considered the objective medical evidence in her evaluation. [ECF No. 17 at 9-11].
Plaintiff's reply brief is devoted to his argument regarding the additional evidence submitted to the Appeals Council. [ECF No. 18 at 1-12].
"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[s] 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"). "Because 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), adopted by Bright v. Comm'r, No. 6:17-1431-CMC, 2018 WL 5863373 (D.S.C. Nov. 8, 2018) ("[T]he 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)). Although neither party recognized SSR 96-7p was superseded by SSR 16-3p or that the ALJ's decision itself referenced the latter, the undersigned notes the similar analysis and refers to the proper regulation cited by Plaintiff.
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), 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).
While assessing the RFC, the ALJ also considered Plaintiff's testimony:
[He] has described his alleged impairments, symptoms, and the effect that both have on his [ADLs]. Specifically, [Plaintiff] alleged that he experiences pain in the back that radiates into his hips and legs. (Hearing Testimony). [Plaintiff] testified that this pain persisted despite undergoing two back surgeries and using a back brace. In addition, he testified to experiencing pain in the neck and left shoulder, noting that the use of his cane aggravates pain in these areas.Tr. at 16-17. The ALJ found Plaintiff's medically-determinable 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 [her] decision." Tr. at 17. The ALJ noted,
With respect to functional limitations, [Plaintiff] testified that he is able to sit up to 25 minutes, stand or walk up to 30 minutes, and pick up or carry up to 15 pounds. In addition, [Plaintiff] testified that he needs to frequently lie down and stretch out his muscles, as well as nap during the day. Concerning his ability to perform [ADLs], he testified that he performs no chores or yard work. [Plaintiff] also testified that he watches his children though he receives assistance from his brother. Further he indicated that he is able to dress himself, though there are some days when he requires assistance putting on a shirt.
in consideration of the factors described in 20 C.F.R. § 404.1529(c)(3) and [SSR] 16-3p, I find that the evidence on record supports the [RFC] assessment. However, it is important to note that the claimant's description of symptoms appears to be sincere and consistent with a perception of disability. Nevertheless, the objective medical evidence does not support a finding that [Plaintiff] experiences limitations beyond those identified herein. Notably, treating notes from the pain clinic reveal the intention of his doctors to get [him] to become more active and to lose weight, while diagnostic imaging revealed no more than mild degenerative disc disease of the lumbar spine. (Ex. 11F/22, Ex. 9F/3, Ex. 12F/2). Thus, the evidence suggests that [he] retains the ability to perform work activities consistent with the RFC.Tr. at 19.
Plaintiff argues the ALJ failed to walk through the appropriate factors in evaluating whether his alleged symptoms and limitations were consistent with the evidence and improperly focused on some of the objective medical evidence. [ECF No. 15 at 29]. The Commissioner responds the ALJ was required to consider the objective medical evidence in her analysis and she properly found Plaintiff's pain was adequately accommodated by limiting him to light work with the ability to alternate positions. [ECF No. 17 at 10]. The Commissioner is correct that the ALJ was permitted to consider whether Plaintiff's allegations were consistent with the objective medical evidence, but "subjective evidence of pain intensity cannot be discounted solely based on objective medical findings." Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017).
In Lewis v. Berryhill, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") addressed a plaintiff's argument that "the ALJ failed to satisfactorily explain his decision not to credit her subjective complaints of chronic, non-exertional pain in her upper left extremity." 858 F.3d at 865. The Fourth Circuit noted, "[d]isputes over the role of subjective evidence in proving pain are nothing new" and "[t]his circuit has battled the [Commissioner] for many years over how to evaluate a disability claimant's subjective complaints of pain." Id. (Mickles v. Shalala, 29 F.3d 918, 919 (4th Cir. 1994)). The Fourth Circuit reiterated, "[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. at 866 (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 could not be discounted solely based on objective medical findings, the ALJ improperly increased Plaintiff's burden of proof in doing so, and he "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 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); 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")).
The Commissioner contends "as provided in the regulations, the ALJ was required to consider [objective medical] evidence, and this was by no means the only evidence the ALJ considered." [ECF No. 17 at 10]. Yet, after citing the regulation governing opinion evidence, SSR 96-7p, and cases from the Third Circuit, the Commissioner summarily concludes "[t]hus, Plaintiff's argument should be rejected," without providing any examples of the additional evidence evaluated by the ALJ in this case to support Plaintiff's statements were inconsistent with the evidence. See id. at 10-11.
The undersigned acknowledges the ALJ continued on to state, "[n]otably, treating notes from the pain clinic reveal the intention of his doctors to get [Plaintiff] to become more active and to lose weight, while diagnostic imaging revealed no more than mild degenerative disc disease of the lumbar spine. (Ex. 11F/22, Ex. 9F/3, Ex. 12F/2)." Tr. at 19. However, the cited records do not support the ALJ's conclusion.
Exhibit 9F at page 3 is a treatment note entered by Dr. Lal, Plaintiff's back surgeon, on March 9, 2015, that actually appears to support his allegations of pain. Tr. at 828. Dr. Lal stated, "[Plaintiff] is in today with lower back pain, bilateral hip, and thigh pain, same as before second surgery, numbness, and leg weakness," "he is slightly better [,but] he is continuing to have problems," and "[c]ontinues to have some numbness in his legs however the vast majority of the pain seems to be in his left hip, [but] [f]rom what I understand the orthopedic doctors feel that he does not have any type of pathology that would require [i]ntervention." Id. Dr. Lal concluded Plaintiff would "likely require a referral over to pain management in the future however [he would] continue to follow the patient over the next few months." Tr. at 829. Almost six months later, on October 14, 2015, Dr. Lal further noted he was "not entirely convinced that [Plaintiff] may not have some hip pathology, but [he deferred] to orthopedics" and thought "[Plaintiff] has chronic nerve issues associated with spondylolisthesis and likely will require chronic pain management." Id. Dr. Lal also noted "eventually if he gets disability[,] which I think really he is a candidate for that[,] he may be a good patient for a spinal cord stimulator to further alleviate the pain that he has in his back and in his buttocks." Tr. at 831. The record reveals Plaintiff was subsequently referred to pain management due to the chronic low back pain radiating down his bilateral lower extremities. See, e.g., Tr. at 897, 920-21. Thus, the cited treatment note and subsequent notes by this doctor actually appear to support Plaintiff's subjective allegations of pain. See Lewis, 858 F.3d at 869 ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (citation omitted).
Exhibit 11F at page 22 appears to be an incorrect citation, and it appears the ALJ meant to cite the previous page, which merely relays Nurse Gilchrist's note, at a pain clinic, that she "discuss[ed] with [Plaintiff] the concept of [] reducing his pain somewhat to the point where he could exercise and become more active and hopefully improve his health and quality of life" on December 16, 2015. Tr. at 897. While this note supports a desire to reduce Plaintiff's pain so he could become more active in the future, it acknowledged his pain level had to be reduced first and does not specify how active he could become.
Exhibit 12F at 2 reflects Plaintiff's new patient evaluation at Piedmont Comprehensive Pain Management upon referral by Dr. Lal. Tr. at 920-21. The ALJ's reference appears to be to Nurse Simpson's statement, "I encouraged weight loss to assist with his low back pain." Tr. at 921. Yet, again, this overlooks other relevant statements regarding Plaintiff's symptoms and limitations made during the same visit. See, e.g., Tr. at 920-21 (Plaintiff was "referred by Dr. Lal for consultation due to chronic low back pain," "he has continued to have pain since the surgery," "[h]e and Dr. Lal have discussed spinal cord stimulation in the past and [he] is awaiting disability to undergo [it]," his physical examination revealed TTP to lumbar paraspinous muscles, SLR tests produced low back pain, mild pain was elicited with lumbar flexion, extension, and rotation, the resulting assessment was "[l]umbar post laminectomy syndrome with chronic low back pain radiating to bilateral lower extremities," and Dr. Loudermilk joined in formulating a treatment plan, noting Plaintiff's therapy options were limited due to his insurance and "[o]nce his disability [wa]s approved, [they would] have more options to treat his chronic pain").
In a recent case before the Fourth Circuit, a plaintiff was experiencing chronic pain due to his degenerative disc disease and other impairments, and the Fourth Circuit reviewed the ALJ's evaluation of his subjective allegations. Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 259 (4th Cir. 2017). The plaintiff relayed his pain impacted his sleep, caused him to "alternate between sitting, lying down, standing, and walking" every 25 minutes and resulted in him lying down every hour. Id. The Fourth Circuit noted the ALJ found the plaintiff's "impairments could reasonably be expected to cause the alleged symptoms, . . . [,but] further found that [his] 'statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely credible.'" Id. at 263. The Fourth Circuit summarized the ALJ's reasons for this adverse finding to include the plaintiff's "statements were . . . in conflict with other evidence" and "the objective medical evidence did not reasonably support the claimed intensity and frequency of [his] pain." Id.
The Fourth Circuit noted "the ALJ pointed to various pieces of evidence that he deemed to be in conflict with [the plaintiff's] claim of disabling pain. For example, the ALJ invoked medical records establishing—in the ALJ's words—that [he] 'ha[d] been exercising' and 'doing a lot of physical activity associated with work around his house and some malfunction of his vehicle.'" Id. Yet, the Fourth Circuit noted the records "did not support the ALJ's suggestion." Id. at 264. It also stated "the ALJ must 'build an accurate and logical bridge from the evidence to his conclusion' that [the claimant's] testimony was not [consistent]'—which the ALJ wholly failed to do here," as the medical evidence cited by the ALJ did not support his conclusions. Id. at 269-70 (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)).
Here, the ALJ failed to explain how the evidence she cited supports Plaintiff's pain was not as disabling as he alleged. First, the records cited merely reflect the providers either discussed "the concept of [] reducing his pain . . . to the point where he could exercise and become more active" or "encouraged weight loss to assist with his low back pain." Second, within these records, it was reported Plaintiff continued to have pain since his surgeries, he required a referral to pain management for his chronic pain, his physical examinations revealed pain in his back, he was assessed with lumbar post laminectomy syndrome with chronic low back pain radiating to bilateral lower extremities, and both doctors noted spinal cord stimulation would be a possible treatment option for his pain should he be awarded disability. Finally, the undersigned is unable to determine whether the ALJ's decision is supported by substantial evidence in light of her statement "[Plaintiff's] description of symptoms appears to be sincere and consistent with a perception of disability," compared with the evidence (discussed above) that she cited in support, and her conclusion "the evidence suggests [he] retains the ability to perform work activities consistent with the RFC." Tr. at 19; see Brown, 873 F.3d at 260 ("Indeed, [the plaintiff's] treating and examining sources consistently opined that [his] chronic pain rendered him unable to work, and none of them questioned [his] credibility with respect to the intensity and frequency of his pain.").
Moreover, "[b]ecause symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone," the regulations require the ALJ to "carefully consider any other information" about the claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Other evidence the ALJ "will consider includes statements from the individual, medical sources, and . . . the factors set forth in our regulations." SSR 16-3p; see also 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3) (listing factors to consider, such as the location, duration, frequency, and intensity of pain or other 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).
In her evaluation of Plaintiff's symptoms, the ALJ failed to consider his consistent reports of back pain for four years (despite injections, surgeries, and medication adjustments), the treating providers' statements that he seemed disabled or in pain, and his testimony regarding limited functioning due to pain. For example, the record reveals Plaintiff presented to doctors or emergency rooms reporting back pain at least twenty times between January 12, 2012, and March 19, 2013. See, e.g., Tr. at 429-39, 440-48, 458-67, 468-75, 476-84, 485-89, 490-98, 499-506, 507-14, 518, 785-90, 519-39, 540-57, 388, 385, 382, 377-79, 390-97, 558-71, 403-408, 409-12, 422-28.
In addition, Plaintiff continued to report pain from the amended alleged onset date in June 2013 through July 2016. See, e.g., Tr. at 695-716 (reporting to the emergency room with back pain on June 11, 2013, and Dr. Haldeman noted Plaintiff's pain worsened when lying flat or standing up straight with positive SLR and FABER tests on the right side); 717-37 (complaining of back pain in the emergency room with notes Plaintiff walked with some difficulty and had bony tenderness over L-5); 778-81 (presenting to Carolina Neurosurgery and Spine Center with complaints of pain in his lower back and left hip on June 24, 2013, and, based on the results of an MRI, Dr. Lal discussed performing an L5-S1 posterior lumbar interbody fusion); 738-58 (reporting back pain in an emergency room on June 28, 2013); 776 (presenting to Carolina Neurosurgery and Spine Center for a follow up and complaining of pain, especially in his left hip on August 5, 2013); 774 (reporting he was "still in a lot of pain" and Dr. Lal noted palpation of the trochanteric region resulted in "fairly significant pain"); 772 (complaining of back and hip pain to Dr. Lal on August 23, 2013); 770 (complaining of bilateral hip pain and possible SI joint pain on September 20, 2013); 768-69 (complaining of cramping in his thighs, pain in his hips, and pain in his lower back area and Dr. Lal noted "it could take one year to 18 months . . . for a fusion to take" on December 2, 2013); 766 (reporting continued pain in his back and hips and his pain medication was wearing off too quickly on January 27, 2014); 763-64 (reporting improvement since the surgery, but continued mid-back and hip pain on March 31, 2014); 794-95 (reporting back and hip pain to Dr. Lal, who indicated he would like to explore the area where Plaintiff had surgery on July 7, 2014); 821-22 (reporting pain in his lower back and right leg was gone, but he had lower back discomfort and experienced increasing difficulty with left thigh pain and left hip discomfort on October 6, 2014); 826-27 (reporting lower back pain that radiated down into his hips and bilateral leg weakness on December 8, 2014); 828-29 (presenting to Advanced Spine and Neurosurgical Associates with lower back, hip, and thigh pain, and reporting he was "slightly better," but he "continu[ed] to have problems" on March 9, 2015, and Dr. Lal noted he looked uncomfortable transitioning from sitting to standing, had difficulty with his gait, and would likely need a referral to pain management in the future); 825 (providing a statement by Dr. Lal that Plaintiff could not engage in any type of employment for approximately four months on April 27, 2015); 837-39, 932-34 (noting Plaintiff became a patient at Uptown Family Practice with complaints of chronic thoracic back pain on October 12, 2015); 830-32, 846-49 (presenting with complaints of lower back pain, radiating down into his right hip on October 14, 2015, and Dr. Lal noted, "I do think eventually if he gets disability which I think really he is a candidate for that he may be a good patient for a spinal cord stimulator to further alleviate the pain that he has in his back and in his buttocks"); 903-19, 909 (presenting to the pain clinic at Self Regional Healthcare and reporting constant pain in his neck, back, and legs at a 9/10 level, and Dr. Mironer noted decreased ROM in Plaintiff's neck and back and diagnosed him with chronic low back pain and lumbar radiculopathy on December 2, 2015); 890-902 (reporting a pain level of 8/10, Nurse Gilchrist noted Plaintiff was in slight distress, walked with a cane and abnormal gait, and Dr. Mironer diagnosed low back pain and lumbar region radiculopathy on December 16, 2015); 833-35 (reporting lower back, upper thigh, heel, bilateral leg, and right hip pain, but acknowledging his symptoms were 50% better than pre-operatively, although he still required the use of a cane on January 11, 2016); 877-89 (reporting he had been unable to perform much activity and MS Contin relieved his pain, but made him drowsy, Nurse Gilchrist noted he had been re-referred back to Dr. Lal, "as he was hoping to have additional surgery to correct his back pain," and Dr. Lal saw him in January, February, and March, but "re-referred him back to this clinic to manage his medication regimen," as "Dr. Lal informed him that he would not do any additional surgery until he transition[ed] to Medicare and would be a candidate for the spinal cord stimulator" on April 4, 2016); 935-42 (presenting to Dr. Lal for a follow up and Dr. Lal noted Plaintiff had a "long history of low back pain and radiculopathy" and "although better he is having chronic pain" and referred him to pain management on May 6, 2016); 920-21 (presenting to Piedmont Comprehensive Pain Management Group upon referral of Dr. Lal and Nurse Simpson noted Plaintiff was TTP in the lumbar paraspinous muscles, his SLR test was positive for low back pain, mild pain was produced with flexion and extension and rotation, his muscle strength was 3/5 in lower extremities and she noted the treatment plan with Dr. Loudermilk, stating "[o]nce his disability is approved, we will have more options to treat his chronic pain" and "[a] spinal cord stimulation will be considered when his disability case has been approved"); 969 (providing Dr. Loudermilk adjusted Plaintiff's medications because Neurontin had caused his legs to swell, noted he was attempting to obtain health insurance coverage that would provide him with more pain management options, and assessed lumbar post laminectomy syndrome with chronic pain in the lower back and both legs due to radiculopathy on July 21, 2016).
Furthermore, the record reveals Plaintiff was prescribed various medications and dosages in an attempt to address his pain, including ibuprofen, Valium, Morphine, Hydrocodone, Norco, Skelaxin (later noting Skelaxin was not working so Flexeril was prescribed), Robaxin, Somas, Tramadol, Lortab, Neurontin, Oxycodone, MS Contin, Percocet, and Duragesic patches. See, e.g., 381, 384, 385, 402, 416-21, 458-67, 775, 885-86, 490-98, 911.
Plaintiff underwent various forms of treatment, in addition to medication adjustments, in an effort to relieve pain before being referred to pain management. See, e.g., 413-15 (noting receipt of injections), 782-84 (presenting to the Carolina Neurosurgery and Spine Center with complaints of back and hip pain after being seen the year prior and inquiring if surgery would be necessary due to failed injection relief); 791-93 (undergoing an L5-S1 posterior lumbar interbody fusion by Dr. Lal); 772 (being referred by Dr. Lal to orthopedics to have his hip evaluated due to continued pain); 771 (noting Dr. Lal would request evaluation by a chiropractic therapy practice regarding Plaintiff's SI joint pain); 796-814 (undergoing exploratory surgery by Dr. Lal that revealed the "[p]araspinal muscles dissected off of L3-L4 and the old hardware. It was clear that the screws that were placed in L5 were loose," and, consequently, the screws were removed, the S1 screws were replaced, scar tissue was removed, the L-4 and L-5 nerve roots were decompressed, and a complete L-4 laminectomy was performed with a large amount of granulation tissue noticed on the lateral recess). While attempting these various forms of treatment to address Plaintiff's pain, his doctors noted they were limited in their treatment options due to Plaintiff's insurance limitations. See, e.g., Tr. at 918, 920-21, 969 (containing statements by Dr. Mironer, Dr. Lal, and Dr. Loudermilk in 2015 and 2016).
The ALJ, after finding Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, concluded his statements regarding the intensity, persistence, and limiting effects of the symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. at 17. The ALJ's analysis ignores Plaintiff's consistent allegations of pain and various failed attempts to obtain relief, as provided above, that appear to support his allegations he has severe pain that limits his abilities to sit, stand, or walk for 30 minutes at a time, lift only 15 pounds, or focus for thirty minutes, and causes him to lay down for half the day. See Tr. at 41-50; see also Lewis, 858 F.3d at 870 (citing Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006) ("Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain is so continuous and/or so severe that it prevents him from working a full eight hour day.")).
The Commissioner is correct that the ALJ is not required to "specifically refer to every piece of evidence in her decision." [ECF No. 17 at 11 (quoting Reid v. Comm'r Soc. Sec. Admin., 769 F.3d 861, 865 (4th Cir. 2014))]. However, the ALJ must address relevant evidence as required by SSR 16-3p, the regulations, and Fourth Circuit precedent. Here, the ALJ acknowledged Plaintiff's allegations of pain appeared sincere, but then focused upon objective medical evidence and misconstrued phrases regarding exercise or weight loss to support her RFC assessment.
To properly assess a claimant's RFC, the ALJ must ascertain the limitations imposed by the individual's impairments and determine her work-related abilities on a function-by-function basis. SSR 96-8p. "In assessing the [consistency] of a claimant's statements about pain and its functional effects, the ALJ is supposed to consider whether there are 'any conflicts between your statements and the rest of the evidence, including your history, the signs and laboratory findings, and statements by your medical sources or other persons about how your symptoms affect you.'" Brown, 873 F.3d at 269 (quoting 20 C.F.R. § 404.1529(c)(4)). "Significantly, however, the ALJ must build an accurate and logical bridge from the evidence to [her] conclusion that [the claimant's] testimony was not [consistent] . . . ." Id. (internal citation and quotation marks omitted). The Fourth Circuit has "held that '[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 credible and why, and specific application of the pertinent legal requirements to the record evidence.'" Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). "[R]emand 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)).
Because the ALJ's assessment is flawed and she failed to comply with SSR 16-3p, applicable regulations, and Fourth Circuit precedent to properly evaluate Plaintiff's symptoms and limitations, the undersigned recommends the court find it is unable to determine that substantial evidence supports her decision and remand this case for further proceedings.
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 explained, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
Plaintiff also argued additional evidence submitted to the Appeals Council supports he is disabled and the case should be remanded under sentence four of 42 U.S.C. § 405(g). [ECF No. 15 at 1, 13-27]. The Commissioner responded the Appeals Council was correct and, because the additional evidence was not incorporated into the record, Plaintiff had to satisfy the criteria for a remand pursuant to sentence six of 42 U.S.C. § 405(g). [ECF No. 17 at 4-9]. Plaintiff replied the court could consider the additional evidence because it was submitted to the Appeals Council, who essentially considered it even though the evidence was not incorporated in the record. [ECF No. 18 at 1-12]. In an effort of judicial economy, the undersigned notes a few items. First, the Appeals Council in this case addressed the additional evidence under the revised regulation. See Tr. at 1-2 (stating the Appeals Council "applied the law, regulations, and ruling in effect as of the date we took this action," denying Plaintiff's request for review on September 1, 2017, and referencing the revised regulation's requirements for review); see also 81 Fed. Reg. 90987-01, 2016 WL 7242991. Second, although the additional evidence was submitted to the Appeals Council for review, it was not incorporated into the record before this court. The Appeals Council's denial notice explicitly stated, "We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence." Tr. at 2; but see Social Security Administration's Hearings, Appeals, and Litigation Law Manual ("HALLEX"), HALLEX § I-3-5-20, available at https://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html (addressing how additional evidence is to be handled when the Appeals Council denies a request for review and does not consider the evidence, stating a copy of the evidence will be associated in the file and "included in the certified administrative record if the case is appealed to Federal court"). Finally, "[r]eviewing courts are restricted to the administrative record in performing their limited function of determining whether the Secretary's decision is supported by substantial evidence." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (citing 42 U.S.C. § 405(g)); Compare Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (remanding the case under sentence four), with Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012) (remanding the case under sentence six).
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. December 28, 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).