Opinion
Civil Action No. 2:19-cv-01553-RMG-MGB
11-30-2020
SHEILA ROACH, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff Sheila Roach brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the "Administration") regarding Plaintiff's claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 42 years old on her alleged disability onset date of July 30, 2010.. (R. at 355, 822.) Plaintiff alleged disability due to, inter alia, back and leg problems, intestinal and bladder problems, nerve damage, anxiety, and depression. (Id. at 119, 132.) Plaintiff has past work as a waitress, cashier, and assembler, but has no past relevant work for social security purposes. (Id. at 188, 202, 307.)
Plaintiff amended her alleged onset date to July 30, 2010 during her November 27, 2012 hearing to reflect the first evidence of record in her file. (Id. at 41.)
Plaintiff filed an application for SSI on March 2, 2011. (Id. at 162.) Her application was denied initially on May 20, 2011, and upon reconsideration on October 6, 2011. (Id. at 130, 144.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on November 6, 2011. (Id. at 155.) The hearing was held on November 27, 2012. (Id. at 11, 875-903.) On April 11, 2013, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 804-29.) The Appeals Council denied Plaintiff's request for review on November 16, 2016, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 830-35.) She filed a civil action, and her claim was remanded for further proceedings on October 14, 2016. (Id. at 836-74.) A second hearing was held on April 14, 2017. (Id. at 763-803.) Plaintiff testified at the hearing, as did a vocational expert. (Id.) The ALJ issued a partially favorable decision on January 31, 2018. (Id. at 352-81.) On April 12, 2019, the Appeals Council again denied Plaintiff's request for review. (Id. at 344-51.) This civil action followed.
Plaintiff also filed an application for DIB, but waived that claim because her amended alleged onset date was after her date last insured. (R. at 770-71.)
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ's decision:
(1) The claimant has not engaged in substantial gainful activity since the alleged onset date (20 CFR 416.971 et seq.).
(2) Since the alleged onset date of disability, July 30, 2010, the claimant has had the following severe impairments: disorders of the back and chronic Eustachian tube dysfunction due to a very complicated ear infection as a child (20 CFR 416.920(c)).
(3) Since the alleged onset date of disability, July 30, 2010, the claimant has not had 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 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, I find that prior to June 11, 2017, the date the claimant became disabled, the claimant had the residual functional capacity to perform reduced light work as defined in 20 CFR 416.967(a) except she could lift 20 pounds occasionally and 10 pounds frequently. She was able to stand and walk for two hours in an eight-hour workday and sit for six hours in an eight-hour workday. She was not able to climb ladders, ropes or scaffolds. She was able to frequently balance, and she was able to occasionally climb ramps/stairs, stoop, kneel, crouch and crawl. She must have avoided even moderate exposure to hazards. She would have needed a walker to assist with ambulation.
(5) After careful consideration of the entire record, I find that beginning on June 11, 2017, the claimant has the residual functional capacity to perform reduced light work as defined in 20 CFR 416.967(a) except she can lift 20 pounds occasionally and 10 pounds frequently. She is able to stand and walk for two hours in an eight-hour workday and sit for six hours in an eight-hour workday. She is not able to climb ladders, ropes or scaffolds. She is able to frequently balance, and is able to occasionally climb ramps/stairs, stoop, kneel, crouch and crawl. She must avoid even moderate exposure to hazards. She needs a walker to assist with ambulation. The claimant will miss various times from work on a daily basis, and that she will experience pain and numbness that will interfere with her attending the workstation and could cause her to miss minutes or hours from work in an eight-hour workday.
(6) The claimant has no past relevant work (20 CFR 416.965).
(7) Prior to the established disability onset date, the claimant was a younger individual age 45-49. The claimant's age category has not changed since the established disability onset date (20 CFR 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
(9) Transferability of job skills is not an issue in this case because the claimant does not have past relevant work (20 CFR 416.968).
(10) Prior to June 11, 2017, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs
that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 416.969 and 416.969a).(Id. at 355-73.)
(11) Beginning on June 11, 2017, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.960(c) and 416.966).
(12) The claimant was not disabled prior to June 11, 2017, but became disabled on that date and has continued to be disabled through the date of this decision. Her disability is expected to last twelve months past the onset date (20 CFR 416.920(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 1382(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 416.920(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640.
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff argues that the ALJ erred by failing to provide substantial evidence in support of the established onset date determined by the ALJ. (Dkt. No. 11 at 29.) Plaintiff further argues that the ALJ improperly rejected certain opinions given by Plaintiff's treating physician. (Id. at 31.) For the reasons set forth below, the undersigned finds that the ALJ did not adequately support his established onset date and failed to properly evaluate the opinions of Plaintiff's treating physician. Accordingly, the undersigned orders that the Commissioner's decision be reversed and remanded for further proceedings.
I. ALJ's Evaluation of Treating Physician Opinion
Plaintiff argues that the ALJ erred in rejecting certain portions of the opinion of Plaintiff's treating physician." (Dkt. No. 11 at 33.) More specifically, Plaintiff notes that:
The ALJ gave little weight to all of Dr. Loudermilk's opinions except for his 2017 opinion which he gave great weight. But the reasons for rejecting Dr. Loudermilk's 2011 opinions were identical to his first evaluation of those records. And the ALJ provided the exact same reasoning for rejecting
Dr. Loudermilk's 2013 opinions as he provided previously. But this case previously admonished the ALJ's evaluation of Dr. Loudermilk's opinions, and the ALJ simply repeated his prior findings.(Id. at 35) (internal citations omitted). Plaintiff further states that "the ALJ accepted Dr. Loudermilk's 2017 opinion . . . [but] the ALJ failed to recognize that the [opinion] related to an earlier time period." (Id.)
In response, the Commissioner contends that "Dr. Loudermilk's opinion that Plaintiff could not work prior to June 11, 2017 was inconsistent with the record evidence, including his own treatment notes." (Dkt. No. 12 at 21.) The Commissioner further argues that "the record evidence does not support Dr. Loudermilk's opinion that Plaintiff could not work prior to June 11, 2017" and that "the ALJ followed the controlling regulation in giving little weight to Dr. Loudermilk's opinions that Plaintiff was disabled prior to June 11, 2017." (Id. at 21, 25.)
Under the regulations of the Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. § 416.945; 20 C.F.R. § 416.927. The regulation, known as the "Treating Physician Rule," imposes a duty on the Commissioner to "evaluate every medical opinion we receive." 20 C.F.R. § 416.927(c).. Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 416.927(c)(2).
The "Treating Physician Rule" applies only to claims filed before March 27, 2017. See 20 C.F.R. § 416.927(c); see also Cohen v. Berryhill, No. 2:16-cv-01238-RMG-MGB, 2017 WL 3638229, at *5 (D.S.C. July 31, 2017), adopted, No. 2:16-cv-1238-RMG, 2017 WL 3476738 (D.S.C. Aug. 14, 2017), and adopted, 272 F. Supp. 3d 779 (D.S.C. 2017). The Court notes that Plaintiff filed her claim on March 2, 2011. As such, the Court applies the rules set forth in 20 C.F.R. § 416.927 as opposed to 20 C.F.R. § 416.920(c). See 20 C.F.R. § 416.927 ("For claims filed (see § 416.325) before March 27, 2017, the rules in this section apply. For claims filed on or after March 27, 2017, the rules in § 416.920c apply.")
Under some circumstances, the opinions of treating physicians are to be accorded controlling weight. See id. (stating that the opinion of a treating physician is given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record"). Where the opinions of the claimant's treating physicians are not accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a broad range of factors, including the examining relationship; the length, nature and extent of the treatment relationship; supportability of the opinions in the medical record; consistency; medical specialization by physician; and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.927(c)(1)-(5). "[T]he opinion of a treating physician is entitled to great weight because it reflects a judgment based on continuing observation over a number of years." Campbell v. Bowen, 800 F.2d 1247, 1250 (4th Cir. 1986). Accordingly, the Commissioner should weigh the findings and opinions of treating physicians and give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5; see also 20 CFR § 416.927(c)(2); Hendrix v. Astrue, No. 1:09-cv-1283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010) (noting that although "an express discussion of each factor is not required," the ALJ must demonstrate that he applied the relevant factors in evaluating the opinion and provide good reasons for his decision).
Upon review of the ALJ's decision, the undersigned finds that the ALJ has failed to adequately explain his reasons for rejecting Dr. Loudermilk's 2011 and 2013 opinions. In its August 24, 2015 Order, to Court instructed the ALJ to consider the extensive treatment relationship between Plaintiff and Dr. Loudermilk, the fact that Dr. Loudermilk was Plaintiff's only treating physician, and Dr. Loudermilk's specialty as a pain management physician. (R. at 836-75.) The Court also advised the ALJ to consider "the provisions of 20 C.F.R. § 416.927(c)(2) that discourage reliance upon consultative examination and brief hospitalizations to the exclusion of treating physician's opinions." (Id. at 866.) The Court further explained that the ALJ improperly "rejected Dr. Loudermilk's opinion because he thought Plaintiff 'embellished the debilitating impact of her mental and physical impairments' based upon a one-time mental consultation with Dr. Moody, emergency department visits, and the assessments of non-treating examining state agency consultants." (Id.)
The undersigned notes that the ALJ added the following to the beginning of his "Weight to Opinions" section:
In assessing weight to Dr. Loudermilk's opinions, I have considered the fact that he has examined the claimant extensively. I have also considered the fact that he has established a treating relationship with the claimant that has endured over at least a six-year period and he therefore has had a unique opportunity to examine and treat the claimant. I find that he is therefore duly qualified to determine the severity of the claimant's impairments. He is also certainly able to give opinions regarding the claimant's physical and mental impairment; however, it must be noted he is not a mental health expert. However, as shown below, there are numerous inconsistencies within his records and in the record as a whole that militate against his opinions.(R. at 368.) The ALJ continues on to evaluate Dr. Loudermilk's opinions. However, Plaintiff correctly notes that the ALJ's "reasons for rejecting Dr. Loudermilk's 2011 opinions were identical to his first evaluation of those records" and that "the ALJ provided the exact same reasoning for rejecting Dr. Loudermilk's 2013 opinions as he provided previously." (Dkt. No. 11 at 35; R. at 368-70.) Accordingly, the undersigned cannot determine how the considerations outlined at the beginning of the ALJ's "Weight to Opinions" section influenced the weight he granted to Dr. Loudermilk's 2011 and 2013 opinions. Further, the undersigned cannot ascertain how the ALJ reweighed Dr. Loudermilk's findings in light of the Court's instruction that he should follow "the provisions of 20 C.F.R. § 416.927(c)(2) that discourage reliance upon consultative examination and brief hospitalizations to the exclusion of treating physician's opinions." (R. at 866.)
In assessing weight to Dr. Loudermilk's various opinions, as established above, I have considered the factors in 20 C.F.R. § 416.927.
In addition, the ALJ has not provided supplemental evidence from the record to support his finding that "numerous inconsistencies within [Dr. Loudermilk's] records and in the record as a whole [] militate against his opinions." (R. at 368-70.) The ALJ simply notes that Dr. Loudermilk's 2017 opinion is supported by Plaintiff's June 2017 MRI results and should therefore be given great weight. (Id.) This notation does not, however, shed light on the inconsistencies in the record that the ALJ finds contradictory to Dr. Loudermilk's earlier opinions. (Id.) As such, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings.
II. ALJ's Consideration of Plaintiff's Disability Onset Date
Plaintiff also asserts that the ALJ's finding that Plaintiff was not disabled until June 11, 2017 is flawed. (Dkt. No. 11 at 30.) More specifically, Plaintiff contends that the ALJ supported his established onset date determination with medical opinions that opined on Plaintiff's limitations and impairments dating back to 2005/2006. (Id. at 28.) Plaintiff also argues that "[t]he ALJ failed to adequately explain how he arrived at his established onset date" and that "[i]n the absence of an intervening event, coupled with the relied upon opinions' ignored relation to a prior time period, the ALJ's decision is beyond review." (Id.)
On the other hand, the Commissioner insists that "the ALJ fully considered the entire record in finding that Plaintiff could work prior to June 11, 2017." (Dkt. No. 12 at 17.) The Commissioner then cites to certain portions of Plaintiff's medical records and concludes that "[s]ubstantial evidence thus supports the ALJ's determination that Plaintiff could work prior to June 11, 2017." (Id. at 20.)
For a claimant with a disabling condition of traumatic origin, the onset date should be determined by the date of the traumatic event if the evidence of record supports a finding that the claimant met the statutory definition of disability on the date of such traumatic event. Social Security Ruling ("SSR") 83-20, 1983 WL 31249 (Jan. 1, 1983). If a claimant alleges a disabling condition of non-traumatic origin, the ALJ must consider the claimant's statements as to when the disability began, the day the impairment caused him to stop work, and medical reports containing descriptions of his examinations or treatment in determining the onset date of disability. Id. A claimant's alleged onset date should be used if it is consistent with all the available evidence. Id. However, additional evidence may be needed to reconcile discrepancies when the medical or work evidence is inconsistent with the onset date alleged by the claimant. Id.
Here, Plaintiff injured her back while attempting to move a birdbath in 2005. She required back surgery and began her pain management regimen shortly thereafter. (R. at 44, 851.)
SSR 83-20 was rescinded and replaced by SSRs 18-1p and 18-2p on October 2, 2018. SSRs 18-1p and 18-2 state "[w]e expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions." The ALJ's decision in the instant case was issued on January 31, 2018.
In support of his established onset date of June 11, 2017, the ALJ explained:
In reaching the findings within the RFC for the period after June 11, 2017, I find that beginning on June 11, 2017, the claimant's allegations regarding her symptoms and limitations are consistent with the evidence. The opinions of Dr. Loudermilk dated May 2017 are consistent with the MRI results dated June 2017. His opinions are also supported by the findings and opinions of Dr. Joudeh. Based on such findings and opinions, I find the aforementioned RFC dutifully reflects these findings by accepting the fact that there is sufficient evidence of record that the claimant's physical condition had deteriorated by June 2017 to the point that she was unable to engage in substantial gainful activity, would miss various times from work on a daily basis, and that she would experience pain and numbness that would interfere with her attending the workstation and could cause her to miss minutes or hours from work in an eight-hour workday.(R. at 367.) Here, Plaintiff is correct that Dr. Joudeh's 2017 opinion opines on Plaintiff's condition since 2005. (Dkt. No. 11 at 33; R. at 1090.) Plaintiff is also correct that Dr. Loudermilk begins his 2017 opinion with "I have treated Sheila Roach for pain management since 2006. I usually see her approximately once every 2 months. Throughout the time period I have treated her, . . . ." (Dkt. No. 11 at 33; R. at 366.) Thus, the opinions on which the ALJ relied in determining the established onset date of June 11, 2017 do not necessarily relate to only the period after such date. The ALJ does not mention the discrepancy between the time periods to which these opinions relate and the chosen established onset date of June 11, 2017. (R. at 366-67.) The ALJ also does not explain why he chose June 11, 2017, in particular, when Dr. Joudeh's opinion was dated June 27, 2017, Dr. Loudermilk's opinion was dated May 18, 2017, and Plaintiff's MRI was ordered in 2016. (Id. at 366-67, 1076, 1010, 1090.) On remand, the ALJ should consider Plaintiff's arguments with respect to the established onset date and should supplement his established onset date explanation as necessary.
Plaintiff's doctor ordered the MRI in August 2016 in connection with her worsening symptoms. However, Plaintiff could not get the MRI until 2017 due to issues with her insurance. (Dkt. No. 11 at 30; R. at 1010.)
CONCLUSION
For the foregoing reasons, the undersigned therefore RECOMMENDS that the Commissioner's decision be REVERSED AND REMANDED for further proceedings.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE November 30, 2020
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).