Opinion
Civil Action No. 8:18-cv-01931-BHH-JDA
06-18-2019
Janice Jackson Rogers, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In February 2015, Plaintiff filed an application for DIB, alleging an onset of disability date of November 24, 2014. [R. 147-48.] The claim was denied initially and upon reconsideration. [R. 96-99; 104-09.] Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and, on August 23, 2017, ALJ Colin Fritz conducted a de novo hearing on Plaintiff's claim. [R. 31-71.]
The ALJ issued a decision on December 19, 2017, finding that Plaintiff was not disabled under the Social Security Act ("the Act"). [R. 13-26.] At Step 1, the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity since November 24, 2014, the alleged onset date. [R. 15, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had severe impairments of: cervical degenerative disc disease, status-post C3/4 fusion; idiopathic neuropathy; obesity; left AC shoulder joint dislocation; and leg length discrepancy. [R. 15, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of benign essential hypertension, attention deficit disorder, major depressive disorder, and anxiety. [Id.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 16, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
[T]he claimant has the residual functional capacity to perform no more than light work as defined in 20 C.F.R. 404.1567(b) working in two hour increments during an 8 hour work day with normal breaks; occasional climbing ladders, ropes or scaffolds; occasional crawling; frequent climbing of ramps or stairs; frequent balancing, stooping, kneeling and crouching; only occasional bilateral overhead reaching with frequent handling, fingering, and feeling on the dominant right hand; occasional exposure to hazards such as unprotected heights or dangerous
machinery; with the abilities to maintain pace for simple repetitive tasks in low stress environments free of fast-paced or team dependent production requirements and involving simple work-related decisions and only occasional independent judgment skills or workplace changes.[R. 18, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as an inspector or home attendant. [R. 23, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 23, Finding 10.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from November 24, 2014, through the date of the decision. [R. 25, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 1-6.] Plaintiff filed an action for judicial review on July 16, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that the ALJ committed error, requiring the decision to be remanded for additional administrative proceedings. [Doc. 14.] Specifically, Plaintiff argues the ALJ failed to weigh the opinion of Plaintiff's physical therapist, who gave her neck a disability score of 52%, which is "synonymous with an individual suffering form pain significant enough to interfere with her ability to perform activities of daily living." [Id. at 4.] Further, Plaintiff argues the ALJ failed to resolve a conflict between the DOT and the VE's testimony that Plaintiff could perform the jobs identified in light of her restriction on reaching. [Id. at 6.] Plaintiff contends that, because the ALJ failed to carry his burden at step 5 to show that other jobs exist in significant numbers that Plaintiff could perform, the matter should be reversed. [Id.]
The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 17.] The Commissioner argues that the ALJ fully considered and discussed the records from Pro Physical Therapy, which included the neck disability rating, in his decision finding that Plaintiff was not disabled within the meaning of the Act. [Id. at 13.] Further, the Commissioner argues the ALJ followed controlling regulations and applicable rulings in resolving any apparent conflict between the restrictions of the RFC of occasional overhead reaching and the jobs identified by the VE. [Id. at 17.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Plaintiff contends the ALJ improperly weighed the medical evidence of record, specifically the neck disability score of 52% provided by Plaintiff's physical therapist. [Doc. 14 at 4.] Plaintiff contends the ALJ was obligated to weigh all of the medical opinions of record and his failure to do so constitutes reversible error. [Id.]
Opinion Evidence from Physical Therapist
The Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. §§ 404.1527, 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. § 404.1527(c). "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." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Where the record appears to contain conflicting medical evidence, it is the purview of the ALJ to consider and weigh the evidence, and resolve the conflict. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence).
The undersigned notes that the "Treating Physician Rule," which applies in the instant action, applies only to claims filed before March 27, 2017. See 20 C.F.R. § 404.1520c; see also Marshall v. Berryhill, No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017).
Special consideration, however, 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. § 404.1527(c)(2). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to 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 C.F.R. § 404.1527(c)(2).
In addition to treating physician opinions, the regulations direct that ALJs accord controlling weight to other medical opinions of record that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 268 (4th Cir. 2017). The ALJ must still proceed to weigh all other medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c). Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). These factors include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the source offering the opinion. Id.; 20 C.F.R. § 404.1527(c).
Physical Therapist's Opinion
In his decision, the ALJ indicated that Plaintiff was treated at Spartanburg Regional Medical Center emergency room on April 19, 2014, for neck strain, after a reported motor vehicle accident. [R. 20.] On May 28, 2014, Plaintiff was assessed for cervical strain, back pain, and hypertension. [Id.] And, after the failure of conservative treatment and management of cervical radiculopathy, on November 6, 2014, Plaintiff was evaluated for a pre-operative assessment and clearance prior to a scheduled cervical fusion procedure. [Id.]
The ALJ noted that, based upon a preoperative diagnosis for C3-4 stenosis with radiculopathy, on November 25, 2014, orthopedic surgeon Dr. Sanjitpal Gill ("Dr. Gill") performed a C3/4 anterior cervical discectomy, fusion, allograft, and instrumentation procedure. [R. 21.] The ALJ indicated that Plaintiff participated in prescribed physical therapy services starting on April 29, 2014, with at least 20 visits to Pro Physical therapy through December 9, 2014. [Id.] Plaintiff was also referred to Pro Physical Therapy and attended at least 8 sessions between June 23, 2017, and July 3, 2017, and she was discharged having reached a plateau and a neck disability score of 52%.
The Neck Disability Index (NDI) is a self-report questionnaire used to determine how neck pain affects a patient's daily life and to assess the self-related disability of a patient's neck with neck pain. Areas of assessment include activities of daily living, attention and work memory, functional mobility, life participation, occupational performance, pain, quality of life and sleep. See https://www.sralab.org/rehabilitation-measures/neck-disability-index, (last visited Jun. 17, 2019.)
Treatment notes indicate that, on April 29, 2014, physical therapist Kay Morgenstern ("PT Morgenstern") at PRO Physical Therapy, Inc. evaluated Plaintiff. [R. 289.] Plaintiff's primary complaint was pain in her neck, right shoulder girdle, and a burning sensation with pain in her right upper extremity. [Id.] Plaintiff also complained of headaches and difficulty with normal daily activities like dressing, bathing, and sleeping. [Id.] Plaintiff indicated her neck felt worse when turning her head, lifting, or cooking, and at the end of the day. [Id.] PT Morgenstern made several objective findings regarding Plaintiff's limitations and rated her function as a neck disability score of 58%. [Id.] PT Morgenstern noted that Plaintiff had limited cervical range of motion, impaired strength, difficulty with normal daily and work activities, and difficulty sleeping, and that she would benefit from physical therapy ("PT"). [Id.] On May 1, 2014, Plaintiff presented for PT, reporting increased stiffness in her neck and that her neck was still sore but the soreness had not increased. [R. 291.] Plaintiff responded well to manual and heat therapy, but remained limited in her cervical movements; it was indicated that she would benefit from continued treatment to improve motion and function. [Id.] On May 5, 2014, Plaintiff presented for PT, reporting that her neck motion had not improved much and that she experienced pain with motion and at rest. [R. 292.] The therapist providing services indicated that Plaintiff still had difficulty with motion but that her motion had improved slightly and should continue to improve with manual therapeutic exercises and postural education. [Id.] Plaintiff reported some relief from her symptoms at the end of her session. [Id.] On May 7, 2014, Plaintiff reported to PT, reporting that she felt better in the morning and that neck symptoms were worse in the evenings. [R. 293.] On May 9, 2014, Plaintiff returned to PT, reporting that she was doing a little better and that her neck was looser following her stretches, but that it tends to tighten up quickly. [R 294.] Plaintiff showed some improvement with cervical ROM. [Id.] On May 12, 2014, Plaintiff attended PT, reporting that she was doing better. [R. 295.] The therapist noted that Plaintiff tolerated the program well and was making good gains with her motion, was moving her neck with improved ease, and gave good effort. [Id.] Again, on May 13, 2014, Plaintiff reported that she was doing well but still complained of tightness along the right side of her neck. [R. 296.] The therapist noted that Plaintiff continued to make gains with improving her cervical motion although she still had limited motion in her neck making driving, lifting, and performing job duties difficult. [Id.]
On May 16, 2014, Plaintiff returned to PT, reporting that she was doing better through the week but awoke with increased pain and tension in her neck that morning. [R. 297.] Plaintiff showed improved mobility after treatment and noted feeling more relaxed although she still exhibited pain and discomfort when she turned her head. [Id.] Treatment notes from May 20, 2014, indicate that Plaintiff attended her PT sessions as ordered by her doctor, but that her pain had spiked over the last few days with her pain level being a 9/10. [R. 298.] Plaintiff noted increased difficulty driving, bathing, dressing, and grooming over the past few days, as well as difficulty performing her duties as a caregiver. [Id.] Prior to this visit, Plaintiff was making progress and demonstrated improved ease with neck mobility and a decrease in symptoms. [Id.] PT Morgenstern was unsure what may have caused an exacerbation of her symptoms. [Id.] In light of the above, the therapist gave Plaintiff a neck disability index score of 60% which is 2% worse than her initial score. [Id.]
On May 21, 2014, Plaintiff reported that she was doing better and responding well to heat. [R. 300.] Again, on May 23, 2014, Plaintiff attended PT and reported doing well overall, although ironing that day caused some stiffness in her neck. [R. 301.] Plaintiff responded well to decompression series with a decrease in pain and improved ease of mobility. [Id.] On May 27, 2014, Plaintiff reported neck pain and difficulty performing her job duties as well as her daily activities at home. [R. 302.] She continued to respond positively to soft tissue work and was able to perform the exercises with no increase in symptoms. [Id.] She also indicated she was doing better in the morning than in the evening. [Id.] On May 29, 2014, Plaintiff reported that her doctor had referred her to a pain management specialist. [R. 303.] Plaintiff was doing fine over the last few days and her neck symptoms were better some days more than others. [Id.] She reported some relief after each session, but the carry over was only for a few hours. [Id.] On May 30, 2014, Plaintiff reported soreness with increased activity and, at times, when watching TV or driving. [R. 305.] She also expressed frustration with her pain and difficulty with normal activities and difficulty sleeping. [Id.] Plaintiff presented with much less muscle tension; however, she was easily fatigued which reflected an impaired posture awareness. [Id.] The physical therapist noted that Plaintiff was progressing steadily toward her goals with improved tissue mobility and noted that Plaintiff would benefit from continued strengthening and flexibility exercises and improvement in soft tissue mobility. [Id.]
On June 4, 2014, Plaintiff attended PT, reporting that she was doing better, but had not done much except mopping, sweeping, and vacuuming. [R. 309.] Plaintiff performed exercises well and treatment notes indicated she was progressing steadily towards her goals. [Id.] On June 9, 2014, Plaintiff reported increased pain after lifting a 12 pack of water, but she responded well to treatment with improved cervical ROM and a significant decrease in pain. [Id.] On June 11, 2014, Plaintiff reported that she consistently felt better following PT and would wake up the next day feeling better; however, she still experienced pain when trying to do her normal activities. [R. 312.] On June 16, 2014, Plaintiff reported having neck pain, limited motion, and an inability to perform all of her required job duties. [R. 316.] On June 18, 2014, Plaintiff reported that she started taking pain medication prescribed by her doctor. [R. 318.]
On June 20, 2014, Plaintiff reported that she was still having night cervical pain and that she had been unable to get a pain management visit or specialist because no one was willing to take an MVA case. [R. 320.] On June 23, 2014, Plaintiff reported that her neck was doing okay, and she had improved cervical movements at the end of the session. [R. 321.] On June 25, 2014, Plaintiff reported sleeping better. [R. 322.] The physical therapist noted that Plaintiff was progressing well with improved carry over, and she was gaining improved ease of movement with cervical motion, although she was still limited with rotation and side bending. [Id.] On June 27, 2014, Plaintiff reported that she typically feels better in the morning but is sore in the evening. [R. 324.] The physical therapist noted that Plaintiff should continue her plan of care to achieve maximum rehabilitation potential and then be discharged to an independent HEP. [Id.] On June 30, 2014, the physical therapist noted that Plaintiff was progressing steadily toward goals with decrease in pain, improved cervical ROM, and improved ability to perform her normal daily activities. [R. 326.] The physical therapist noted that Plaintiff reported feeling better in the mornings with an increase in stiffness and soreness in the evenings. [Id.] Plaintiff reported being able to resume some of her normal daily activities, but described pacing her level of activity. [Id.] The physical therapist noted that Plaintiff consistently responded well to her PT treatments with decreased pain and improved ease of mobility. [Id.] The physical therapist specifically noted that Plaintiff had achieved the following goals: improved sleep; 75% or more cervical rotation ROM to allow for safe driving; independent in home program of exercise; decreased upper extremity pain/paresthesia subjectively by 50%; and increased cervical rotation by 10-15% bilaterally. [Id.] The physical therapist indicated that Plaintiff should continue to work to achieve the following: decrease shoulder pain to no more than 2/10 in 4 visits; ability to perform household chores and self care; the absence of paresthesia in the involved upper extremity; cervical ROM restored to WFL; ability to push/pull, reach/lift to allow for normal daily activities; and decrease NDI to 30% or less. [Id.]
On July 2, 2014, the physical therapist noted that Plaintiff had made progress since beginning treatment and demonstrated improved cervical motion; however, her motion was still restricted secondary to pain and tightness in her neck. [R. 328.] Plaintiff's MRI revealed bulging disc at levels C3, C4 and C5. [Id.] Plaintiff was discharged to a home program. [Id.] The physical therapist noted, however, that Plaintiff had achieved the following goals: able to sleep for 6 hours or more; 75% or more of cervical rotation ROM to allow for safe driving; independent in a home program of exercise; decrease in upper extremity pain/paresthesia subjectively by 50%; and increase cervical rotation by 10-15 degrees bilaterally. [Id.] Plaintiff was still in the process of decreasing shoulder pain to no more than 2/10 in four visits; being able to perform household chores and self care; having the absence of paresthesia in the involved UP; cervical ROM restored to WFL; being able to push/pull, reach/lift to allow for normal daily activities; and decreasing NDI to 30% or less. [Id.]
Plaintiff underwent surgery with Dr. Gill on November 25, 2014, and returned to PT on December 9, 2014, noting neck pain and difficulty with normal daily activities, difficulty sleeping, and an inability to perform her work duties. [R. 329.] Treatment notes indicate that Plaintiff presented with pain, limited ROM and strength, difficulty with normal daily activities, and difficulty sleeping. [Id.] Plaintiff's neck disability index was noted to be 66%. [Id.] By December 22, 2014, Plaintiff reported she was sleeping better and wearing her brace less often, although she still had complaints of fatigue and soreness in the cervical muscles. [R. 334.] On December 24, 2014, Plaintiff reported complaints of cervical and shoulder discomfort, but felt she was getting better. [R. 335.] On December 31, 2014, Plaintiff reported feeling tired from not sleeping well, as well as issues with swallowing. [R. 336.]
On January 2, 2015, the PT reported Plaintiff was progressing steadily, tolerated her program with no increased symptoms, but fatigued easily. [R. 337.] On January 6, 2015, the physical therapist noted that Plaintiff had been tolerating her program well with no increase in symptoms, she had no pain in her arms, and that she was independent with her HEP and had been compliant. [R. 338.] On January 9, 2015, Plaintiff reported she had been released from her doctor's care but still had complaints of muscle fatigue and pain in her cervical spine. [R. 339.] Notes indicate she was progressing with cervical motion and strength and demonstrating improved trunk control. [Id.]
On January 14, 2014, Plaintiff arrived to PT, reporting increased pain after a busy day of cleaning the house, working out, and attending children's activities. [R. 340.] On January 16, 2015, Plaintiff reported improvement in her neck symptoms and that she has been working out at the local fitness center. [R. 341.] On January 20, 2014, Plaintiff reported right cervical pain after cleaning the house that day. [R. 343.] On January 22, 2015, Plaintiff reported her neck was getting better, although she still had complaints of stiffness and pain. [R. 345.] On January 26, 2015, Plaintiff reported being in a great deal of pain after doing laundry and other things around the house over the weekend, but nothing too strenuous. [R. 346.] She reported that she was unable to perform her exercises that day due to her pain level. [Id.] On January 30, 2015, the physical therapist noted that Plaintiff was making steady progress with improved cervical ROM, increasing her neck disability index from 66% to 50%. [R. 348.] The physical therapist noted that Plaintiff's pain was alleviated during therapy and that she had been increasing her activity level with occasional increase in neck pain and headaches. [Id.] Plaintiff did report, however, difficulty sleeping due to pain and taking prescribed medication with some benefit. [R. 348.]
On February 4, 2015, Plaintiff reported being fatigued lately with intermittent headaches. [R. 350.] During PT, Plaintiff's pain level decreased when her posture was corrected. [Id.] As she fatigued, however, she would lose posture; however, her posture improved with TA bracing. [Id.] Following treatment, Plaintiff reported no pain, but a feeling of pressure in the right cervical region. [Id.] On February 6, 2015, Plaintiff indicated her neck symptoms had improved some since her last visit, but she still reported difficulty performing her ADL's and lifting. [R. 352.] On February 11, 2014, Plaintiff reported having increased neck pain the day before with no increase in activities. [R. 354.] She was still unable to lift more than about 5-7 pounds because lifting more caused her to have discomfort in her neck. [Id.] She also demonstrated moderate difficulty when using her arms at shoulder or above head activities. [Id.] On February 13, 2015, Plaintiff reported an increased in fatigue, soreness, and spasms in her neck and upper back after doing laundry. [R. 356.] The physical therapist noted that Plaintiff appeared to be reaching a plateau. [Id.]
Plaintiff returned again to PT on July 3, 2017, reporting neck pain, limited ROM and strength, difficulty with normal daily activities, and difficulty sleeping. [R. 554.] On July 5, 2017, Plaintiff reported doing well following her evaluation, but indicated she did some housework resulting in increased pain and a headache. [R. 556.] He neck disability index at that time was noted to be 42%. [Id.] On July 10, 2017, Plaintiff returned to PT, reporting pain in her neck and upper back. [Id.] On July 12, 2017, Plaintiff reported pain at a 2/10, but also reported a numbing sensation at the base of her neck upon arrival. [R. 558.] Plaintiff also reported resuming her exercise program, but noted intermittent left shoulder pain. [Id.] The physical therapist noted that Plaintiff would benefit from continued PT to further increase her cervical ROM, decrease pain, and improve her ability to perform her normal daily activities. [Id.] On July 21, 2017, Plaintiff reported upper back discomfort and spasms on the left side. [R. 561.] Plaintiff demonstrated restricted cervical ROM, right greater than left; however, her cervical motion was noted to have improved since beginning therapy. [Id.] On July 29, 2017, Plaintiff reported that she was doing her exercises daily, but still had pain in her upper back. [R. 562.] On August 2, 2017, the physical therapist noted that Plaintiff had attended 8 session and had made progress in that she was demonstrating improved ROM in her cervical spine and improved posture. [R. 564.] The physical therapist also noted that Plaintiff's neck disability index score was 52%, and she was independent and compliant with her HEP. [Id.] Plaintiff was discharged from care and was noted to have long term goals of having independent ADL's with proper body mechanics, peak pain no greater than 2/10, neck disability score of 20% or better, and cervical ROM within full limits. [Id.]
Review of the Opinion Evidence
Plaintiff argues that the ALJ failed to weigh the physical therapist's opinion that she suffered a 52% neck disability. [Doc. 14 at 4.] Plaintiff contends that "a 52 percent disability score is synonymous with an individual suffering from pain significant enough to interfere with her ability to perform activities of daily living." [Id.] Plaintiff argues that "[i]t is clear based upon a review of the hearing decision that the ALJ failed to weigh the discharge opinion found in Plaintiff's physical therapy records." [Id.]
As an initial matter, a physical therapist is not an "acceptable medical source" as defined in the social security regulations, see 20 C.F.R. § 404.1513; however, the opinion of a physical therapist may be considered by the ALJ under the same factors as an acceptable medical source. 20 C.F.R. §§ 404.1513(d), 416.913(d). In reviewing the ALJ's decision, the Court notes that the ALJ made the following statements with respect to Plaintiff's PT:
Acceptable medical sources are licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech pathologists. 20 CFR § 416.913. However, "in addition to evidence from the acceptable medical sources listed . . . we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work." Id. Physical Therapists are included on this list. Id.
This regulation was revised and no longer contains a subsection (d). The court cites to the regulation as it was in effect at the time of ALJ's decision.
[In June 2015, Plaintiff] reported that physical therapy did not help. . . . Range of motion of the neck was limited with neurological deficits noted . . .[R. 21.]
[Plaintiff was] referred to Pro Physical Therapy and attended at least 8 sessions between June 23, 2017 and July 3, 2017. Those records confirm the claimant was compliant with therapy and discharged having reached a plateau.[R. 22.] While the Court does not necessarily find an issue with the ALJ's failure to mention the Plaintiff's neck disability rating per se, the Court is concerned that the ALJ, in deciding Plaintiff's RFC, did not consider the reasons for the therapist's adopting such a rating. Indeed, it is unclear from the ALJ's decision whether the ALJ actually considered the supporting observations recorded by the physical therapist because, outside of noting that Plaintiff attended PT, the ALJ makes no mention of the therapist's findings. It appears from a review of the therapist's findings, that Plaintiff's neck disability rating is tied to Plaintiff's ability to perform activities of daily living. With respect to activities of daily living, Plaintiff testified as follows:
[S]he had cervical surgery in 2014 and she returned to work a couple months later but stopped when she was unable to lift patients or prepare meals for them. She described having pain from the nape of her neck into the upper back and shoulder into the right arm with numbness. She said she injured her left shoulder falling out of a dumpster and dislocating it. She said she has pain in both shoulders and her and her upper and lower back and hip pain due to the shortage in length of the one leg. She said she has problems lifting and dressing with tingling and numbness on the right side and that she is able to reach out and pull weight with the right hand but not the left hand and cannot reach the pans in out of the cabinet. The claimant said she has been to physical therapy with the last time in July and August before she was discharged because she had gotten all the possible benefits. . . .[R. 19.]
[S]he can walk about 200 feet and lift 6 to 7 pounds. She said she takes over-the-counter and prescription pain medications. She said the prescription medications give her major depression and she has anger, crying and lashes out at family members. She reported no hobbies and she last tried any activities including cutting the grass in spring 2017 but was not successful. The claimant said she spent her days watching television or visiting a neighbor and that she has problems dressing herself and mostly with bras. She sated she does not do housework and that her daughters including a 19 year old that recently started college do the housework. The claimant dis [sic] say she is able to cook small meals with some difficulty and that she is able to go to the grocery store and use a motorized scooter. She does not go to movies and she stated that she does not have a pain-free day.
The ALJ found that Plaintiff's testimony and statements concerning the intensity, persistence, and limiting effect of her symptoms were not entirely consistent with the medical evidence of record, but the ALJ provided no explanation for his finding. By way of example, Plaintiff testified that she could lift between 6-7 pounds. [R. 55.] In February 2014, the physical therapist also found that Plaintiff "was still unable to lift more than about 5-7 pounds because lifting more caused her to have discomfort in her neck." [R. 354.] The ALJ, however, found that Plaintiff could lift up to 20 pounds. [R. 24.]
The ALJ's finding, with no explanation, is clearly inconsistent with the physical therapist's findings and Plaintiff's testimony. Because the physical therapist's findings are well-documented and well-reasoned, they provide substantial evidence to support Plaintiff's alleged limitations. The physical therapist's notes clearly document Plaintiff's back pain and her exacerbation of pain by doing minimal activities, such as laundry or sweeping. [R. 298, 305, 346, and 356.] Thus, the ALJ was required to consider the physical therapist's findings and explain his consideration of the same. See Johnson, 434 F.3d at 654.
Additionally, during the course of this disability application, the Administration issued a new Social Security Rule (SSR) on the evaluation of pain, superseding the prior SSR. See SSR 16-3P, 2016 WL 119029 (Mar. 16, 2016) and SSR 96-7P, 1996 WL 374186 (Jul. 2, 1996). The Commissioner is also obligated to weigh and consider a claimant's subjective complaints of pain beyond consideration of objective medical evidence. Under the agency's regulatory scheme, the ALJ must first determine if there is objective medical evidence showing a condition that reasonably could produce the claimant's symptoms. If such objective medical evidence is present, the ALJ must then evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit the claimant's activities. 20 C.F.R. § 404.1529. In making this determination at the second stage of the pain assessment process, the ALJ may not require objective medical evidence to document the intensity of the claimant's pain as this would improperly increase his burden under the regulatory scheme. Lewis v. Berryhill, 858 F.3d 858 at 866 (4th Cir. 2017). The regulations require the ALJ, in assessing a claimant's pain complaints, to consider such factors as the claimant's daily activities; the location, duration, frequency and intensity of the pain; precipitating and aggravating factors; and the type and dose of medications required to alleviate the pain. 20 C.F.R. § 404.1529(c)(3)(i)-(iv). The Commissioner's failure to evaluate Plaintiff's complaints of severe pain in accordance with the standards set forth in § 404.1529 constitutes reversible error.
Additional Allegations of Error
With respect to Plaintiff's remaining complaints concerning the ALJ's decision, on remand the ALJ will be able to reconsider and explain his findings with respect to the medical evidence and Plaintiff's ability to perform jobs identified by the VE in light of the ALJ's RFC findings. See Harris v. Asture, No. 9:09-cv-0028-HFF, 2009 WL 5125215, *4 (D.S.C. Dec. 28, 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D. Va. 2002) (noting that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo)).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge June 18, 2019
Greenville, South Carolina