Opinion
C. A. 1:23-1913-RMG-SVH
12-05-2023
Sharika W.,[1]Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
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 her 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 July 29, 2020, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on July 15, 2020. Tr. at 149, 152, 295-301, 302-08. Her applications were denied initially and upon reconsideration. Tr. at 169-72, 174-77, 178-81. On July 18, 2022, Plaintiff had a hearing by teleconference before Administrative Law Judge (“ALJ”) Trena Mengesha-Brown. Tr. at 73-95 (Hr'g Tr.). The ALJ issued an unfavorable decision on August 25, 2022, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 1-24. 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 23-30. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on May 8, 2023. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 42 years old at the time of the hearing. Tr. at 78. She completed ninth grade. Id. She worked as a self-employed childcare provider, but is considered as having no past relevant work (“PRW”) because her earnings were not consistent with substantial gainful activity. Tr. at 78-79. She alleges she has been unable to work since July 15, 2020. Tr. at 79.
2. Medical History
On June 15, 2020, Plaintiff visited the emergency room (“ER”) at Chester Medical Center (“CMC”) for a migraine and a knot on her right great toe. Tr. at 485. Trevor Robinson, M.D. (“Dr. Robinson”), noted a blister on the lateral aspect of Plaintiff's right great toe. Tr. at 486. A computed tomography (“CT”) scan of Plaintiff's head showed mild deep white matter disease and no evidence of intracranial injury. Tr. at 487. Dr. Robinson assessed hypertension and migraine and ordered Toradol and Compazine injections. Tr. at 488.
On July 11, 2020, Plaintiff presented to the ER at CMC with complaints of fever, chills, cough, shortness of breath, body aches, and hyperglycemia. Tr. at 477. Her medical history included a myocardial infarction in 2015. Tr. at 478. The attending physician diagnosed strep pharyngitis and prescribed nasal saline, Rocephin, and Zithromax. Tr. at 482.
On July 13, 2020, Plaintiff presented to the ER at Lancaster Medical Center for hyperglycemia and a diabetic ulcer on her right great toe. Tr. at 407. Alexander Bondoc Vinuya, M.D. (“Dr. Vinuya”), observed a right great toe circumferential exudative abscess that was actively draining and significant erythema progressing into the pedal aspect of Plaintiff's foot. Tr. at 409. X-rays showed soft tissue sequela of infection at the right great toe without evidence of osteomyelitis. Tr. at 411. Dr. Vinuya admitted Plaintiff to the hospital for treatment of cellulitis. Tr. at 411-12. Mebrahtom W. Tesfai, M.D. (“Dr. Tesfai”), noted Plaintiff had significant leukocytosis. Tr. at 417. He prescribed sliding-scale insulin for diabetes, restarted Plaintiff's home medications for hypertension, and treated cellulitis with Vancomycin and Zosyn. Id. He ordered magnetic resonance imaging (“MRI”) of Plaintiff's foot to rule out osteomyelitis. Id.
On July 15, 2020, Bob Hazelrigg, M.D. (“Dr. Hazelrigg”), observed a mummified, gangrenous right great toe with cellulitis extending up to the anterior ankle. Tr. at 425. An MRI showed abnormal signal at the phalanges around the interphalangeal joint that was suspicious for osteomyelitis/septic arthritis. Tr. at 427. William Harris, IV, M.D. (“Dr. Harris”) discussed the findings with Plaintiff and indicated that due to the severity of her infection and the gangrenous changes to her toe, it would need to be amputated. Tr. at 432. Katlin O'Hara Jackson, D.P.M. (“Dr. Jackson”), performed surgical extraction of Plaintiff's right great toe. Tr. at 439-40. Plaintiff subsequently received intravenous (“IV”) antibiotics and dressing changes. Tr. at 441-74. She was discharged on July 21, 2020, with orders for four weeks of IV Rocephin infusions to be administered once every 24 hours. Tr. at 475.
Plaintiff returned to LMC for Rocephin infusion on July 22, 2020. Tr. at 404. She subsequently received in-home skilled nursing services on July 23 and 27, August 3, 10, 12, 14, 17, 19, 21, 24, 28, and 31, and September 4, 7, 9, and 14. Tr. at 847-946.
Plaintiff presented to Shervon Pierre, M.D. (“Dr. Pierre”), for post-hospitalization follow up on July 27, 2020. Tr.at 751. Dr. Pierre noted Plaintiff had not been seen since June 2019. Id. Plaintiff reported the insulin she had been prescribed upon hospital discharge was not covered by her insurance and requested another insulin be prescribed. Id. Dr. Pierre replaced Tresebia with Admelog and added Chlorthalidone for hypertension. Tr. at 755. She noted Plaintiff's wound was healing appropriately and instructed her to continue to follow up with her surgeon and for infusion. Id.
Plaintiff followed up with Dr. Jackson for post-operative evaluation on or about July 28, 2020. Tr. at 759. Dr. Jackson noted 2+ pitting edema in Plaintiff's right leg, 1+ diminished left dorsalis pedis pulse, absent right dorsalis pedis pulse, 1+ diminished left posterior tibial pulse, absent right posterior tibial pulse, decreased digital hair growth, normal bilateral lower extremity muscle strength, necrotic granulation base to the ulcer at the amputation site, no ankle clonus, decreased bilateral lower extremity vibratory sensation, and decreased Semmes Weinstein monofilament sensation in both feet. Tr. at 760. She debrided Plaintiff's wound and instructed her to continue dressing changes every other day and antibiotic infusions. Tr. at 760-61.
Plaintiff returned to Dr. Jackson on August 4, 2020. Tr. at 764. Dr. Jackson noted exam findings consistent with those on the prior exam. Tr. at 764-65. She debrided Plaintiff's wound and ordered wound vacuum-assisted closure (“VAC”) therapy and home nursing. Tr. at 765. She advised Plaintiff to continue the antibiotics and warned she may require further surgery to control the infection. Id.
On August 11, 2020, Dr. Jackson's observations were generally consistent with prior exams, although she noted a hematoma blister of the left medial first metatarsophalangeal (“MTP”) joint. Tr. at 775-76. She deroofed the blister on Plaintiff's left foot and debrided her amputation site. Tr. at 776. She gave Plaintiff an order for application of the wound VAC to give to home nursing, referred her to pain management, continued IV antibiotics, and instructed her to monitor her left foot blister for complications and to continue heel weightbearing in a surgical shoe Tr. at 777.
On or about August 8, 2020, Plaintiff returned to Dr. Jackson for follow up and reported “bad headaches.” Tr. at 780. She indicated her left foot blister had healed, but she had only had the wound VAC applied to her right amputation site twice because the nurse considered the area to be too macerated for application. Id. Dr. Jackson debrided and sutured the amputation site. Tr. at 781. She instructed Plaintiff to continue with regular dressing changes and use of wound VAC and to monitor for signs of infection. Tr. at 782.
On August 20, 2020, Plaintiff described a bilateral headache that had lasted two weeks and was accompanied by photophobia and phonophobia. Tr. at 746. Her blood pressure was 180/100 mmHg on a first check and 176/106 on a second check. Tr. at 748. Dr. Pierre assessed hypertensive emergency, tachycardia, hypertension, headache due to hypertension, type II diabetes with hyperglycemia, and body mass index (“BMI”) of 31.0 to 31.9 kg/m.2 Tr. at 748-49. She noted Plaintiff declined Clonidine in the office. Tr. at 748.
Plaintiff presented to pain management physician Vimal Choudhari, M.D. (“Dr. Choudhari”), on August 26, 2020. Tr. at 1350. She complained of throbbing right foot pain she rated a nine on a 10-point scale. Id. She described the pain as constant, associated with numbness and tingling, worse at night, and occasionally radiating up her leg. Id. Dr. Choudhari noted normal muscle strength and tone, intact sensation, tenderness over Plaintiff's lower lumbosacral area, no tenderness over the bilateral sacroiliac (“SI”) joints, piriformis muscles, or greater trochanters, painful restriction of lumbar range of motion (“ROM”) with extension more painful than flexion, and negative bilateral straight-leg raise (“SLR”), SI joint provocation, piriformis, and bilateral lumbar facet loading tests. Id. He prescribed Percocet 5-325 mg twice a day and instructed Plaintiff to use a heating pad and Voltaren gel. Tr. at 1352.
Plaintiff returned to Dr. Jackson on August 25, 2020. Tr. at 784. She indicated she had resumed use of the wound VAC one day prior, but had cut it off and had not used it over the weekend because it had been beeping. Id. Dr. Jackson debrided Plaintiff's wound and applied sutures. Tr. at 786. She advised Plaintiff to hold off on using the wound VAC pending reevaluation and to continue dressing changes every other day. Tr. at 787.
Plaintiff refused a home nursing visit on September 2, 2020, noting she could perform wound care on her own and was scheduled to see her doctor the following day. Tr. at 793-94.
On or about September 3, 2020, Plaintiff reported elevated blood glucose and not feeling well. Tr. at 790. Dr. Jackson noted Plaintiff's sutures remained intact and applied a Betadine dressing. Tr. at 791. She advised Plaintiff to continue to keep the foot dressing clean, dry, and intact and to follow up for suture removal and debridement in a week. Id. She stressed that Plaintiff needed to follow up with her primary care provider about her blood sugar and blood pressure as soon as possible. Id.
Plaintiff presented to the ER at CMC with hyperglycemia on September 13, 2020. Tr. at 981. She received a sodium bolus and reported feeling better after treatment. Tr. at 984. She was discharged with instructions to continue her diabetic diet and medications. Id.
Plaintiff presented to Malik Ashe, M.D. (“Dr. Ashe”), for an initial diabetic visit on September 14, 2020. Tr. at 980. She reported feeling weak and dizzy and having a recent blood glucose reading of 511 mg/dL. Id. Dr. Ashe provided samples of Tradjenta and instructed Plaintiff to follow up in a few weeks. Tr. at 981. He recommended Plaintiff discontinued Amlodipine due to hypotension. Id.
Plaintiff declined a home nursing visit on September 16, 2020. Tr. at 1006-07. Dr. Jackson authorized eight additional home nursing visits on September 21, 2020. Tr. at 1022.
On September 25, 2020, state agency medical consultant Kimberly Patton, M.D. (“Dr. Patton”), reviewed the evidence and assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently push and/or pull with the bilateral lower extremities; frequently balance; occasionally climb ramps, stairs, ladders, ropes, and scaffolds; occasionally crawl; avoid concentrated exposure to vibration; and avoid even moderate exposure to hazards. Tr. at 100-02, 109-11.
On October 3, 2020, a lower extremity venous study showed no evidence of deep vein thrombosis of the right lower extremity. Tr. at 1020-21.
On October 5, 2020, Dr. Ashe noted Plaintiff's diabetes remained uncontrolled and prescribed Metformin 500 mg twice a day, Glargine Basaglar 35 units at bedtime, and Steglatro 15 mg daily. Tr. at 1298. He continued Lisinopril 20 mg for hypertension and prescribed Ambien for insomnia. Id.
Plaintiff continued to complain of right foot pain on October 14, 2020. Tr. at 1354. Dr. Choudhari noted limited and painful ROM of the right foot, normal muscle tone, functional muscle strength, tenderness over the lower lumbosacral area, no tenderness over the bilateral SI joints, piriformis muscles, or greater trochanter, no paraspinal muscle spasms, painful restriction of lumbar ROM with extension more painful than flexion, and negative bilateral SLR, SI joint provocation, piriformis, and bilateral lumbar facet loading tests. Tr. at 1355. He continued Percocet. Id.
Plaintiff was discharged from home nursing services on November 20, 2020. Tr. at 1035. Dr. Jackson declined to authorize additional visits based on Plaintiff's failure to present for podiatry follow up visits. Id.
Plaintiff reported right foot and low back pain on December 16, 2020. Tr. at 1357. Dr. Choudhari noted findings consistent with his prior exam. Tr. at 1358. He refilled Percocet and continued Plaintiff on the same treatment course. Tr. at 1358-59.
Plaintiff presented to the ER at CMC for left side and leg pain on January 6, 2021. Tr. at 1153. Her blood pressure was elevated at 173/100 mmHg. Tr. at 1154. Dr. Robinson assessed acute left-sided low back pain with sciatica and ordered a Toradol injection. Tr. at 1158.
Plaintiff continued to complain of right foot and low back pain on January 13, 2021. Tr. at 1360. Dr. Choudhari noted physical exam findings that were mostly consistent with prior exams, except that Plaintiff had positive bilateral SLR. Tr. at 1361. He refilled Percocet and recommended a diagnostic lumbar epidural steroid injection. Tr. at 1361-62.
Plaintiff was admitted to CMC from February 27 to March 1, 2021, for treatment of a left great toe ulcer. Tr. at 1046. X-rays showed a small cortical defect along the lateral margin of the base of the first distal phalanx that could represent tiny early erosion in the setting of infection. Id. Plaintiff improved after receiving IV antibiotics. Tr. at 1050. Her A1C was 14%,and the attending physician adjusted her insulin. Id. Eyad Husam Nazer, M.D. (“Dr. Nazer”), ordered a walker for Plaintiff upon discharge. Tr. at 1064-65.
The reference range for A1C is 4.8-5.6%. Tr. at 1382. An A1C level above 7.0% shows inadequate glycemic control. Id.
Plaintiff followed up with Dr. Jackson regarding a left toe ulcer on March 4, 2021. Tr. at 1247. She indicated her foot was swollen and she could hardly walk on it. Id. Dr. Jackson debrided the ulcer. Tr. at 1249. She noted authorization for an MRI was pending approval and instructed Plaintiff to continue minimal activity and daily dressing changes. Tr. at 1250.
On March 5, 2021, an MRI of Plaintiff's left lower extremity showed severe dependent soft tissue edema without evidence of osteomyelitis in the left ankle. Tr. at 1038.
On March 9, 2021, Plaintiff reported reduced swelling in her left foot. Tr. at 1251. Dr. Jackson debrided the ulcer on Plaintiff's left foot. Tr. at 1253-54. She instructed Plaintiff to follow up with the vascular doctor on Thursday, continue to offload the area, and change the dressing regularly. Tr. at 1254.
Plaintiff followed up with Dr. Ashe on March 17, 2021. Tr. at 1299. She complained of left foot pain, swelling, and trouble walking and requested an assistive device for walking. Id. Dr. Ashe noted Plaintiff appeared to be in distress and demonstrated swelling and warmth to the left ankle and foot, abnormal gait, and a round ulcer on the plantar surface of her left first toe. Id. He assessed a left foot infection and prescribed Clindamycin and Furosemide. Tr. at 1299-1300. He noted Plaintiff's diabetes was poorly- controlled secondary to noncompliance and she had functional gait abnormality, for which he ordered a rollator. Tr. at 1300.
Plaintiff reported increased pain and drainage from her left great toe and the bottom of her left foot on March 18, 2021. Tr. at 1083. Siddharth Malhotra, M.D. (“Dr. Malhotra”), noted Plaintiff's left toe ulcer had not improved since her hospital discharge and her foot had a cool blue hue, although it was still warm to touch and had intact active ROM. Tr. at 1089. He recommended tighter blood sugar control, excision of necrotic tissue from Plaintiff's left foot, and revascularization treatment. Id.
Plaintiff reported lack of appetite and poor energy and requested her iron level be checked on March 30, 2021. Tr. at 1301. Dr. Ashe observed Plaintiff appeared distressed and demonstrated abnormal gait. Id. He noted Plaintiff's hypertension was uncontrolled and instructed her to restart Lisinopril. Id. Plaintiff declined to have blood drawn for lab studies. Id. Dr. Ashe again noted functional gait abnormality and instructed his staff to resubmit his order for a rollator. Tr. at 1302.
Dr. Malhotra performed left superficial femoral artery (“SFA”) angioplasty, intravascular ultrasound of the left SFA, diagnostic angiography, and ultrasound-guided vascular access on March 31, 2021. Tr. at 1096-97. He diagnosed left great toe gangrene and high-grade stenosis of the left SFA. Id.
On April 13, 2021, Plaintiff reported increased pain in her left great toe. Tr. at 1111. Dr. Malhotra indicated Plaintiff would likely require left great toe amputation at the MTP joint. Id. He indicated he would obtain an MRI to assess whether the infection had extended to the metatarsals. Id.
Plaintiff underwent an MRI of her left foot on April 22, 2021, that showed osteomyelitis involving the entire great toe, plantar fluid collection at the level of the interphalangeal joint with air present, and ulceration to the skin surface. Tr. at 1240.
Plaintiff presented for left great toe amputation on May 10, 2021. Tr. at 1160. Her blood sugar was elevated at 487 mg/dL. Id. Dr. Malhotra referred her to the ER to get her blood sugar down prior to the procedure. Id. He subsequently performed left great toe amputation at the MTP joint. Tr. at 1133-34.
On May 26, 2021, Plaintiff reported post-surgical pain to her left foot, in addition to right foot and low back pain. Tr. at 1364. Dr. Choudhari again noted positive bilateral SLR test in addition to findings consistent with his prior exams. Tr. at 1365. He acknowledged that Plaintiff had received opioid medications following her left toe amputation, but still refilled Percocet. Id.
Plaintiff reported drainage from the incision line and sharp pain at the amputation site on May 20, 2021. Tr. at 1281. Dr. Malhotra noted clear drainage with a small 0.4 cm dehiscence. Id. He prescribed an ointment and pain medication. Id.
On June 22, 2021, Dr. Malhotra noted a small open medial area and minimal drainage and indicated Plaintiff's amputation site was doing well overall. Tr. at 1282. He advised Plaintiff to continue daily exufiber dressing changes at the medial aspect of the amputation site. Tr. at 1283.
On September 3, 2021, Dr. Choudhari noted positive SLR and other findings consistent with prior physical exams. Tr. at 1367-68. He refilled Percocet. Tr. at 1369.
On September 17, 2021, state agency medical consultant William Crosby, M.D. (“Dr. Crosby”), reviewed the evidence and assessed Plaintiff's physical RFC as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of two hours; sit for a total of six hours in an eight-hour workday; avoid bilateral foot controls; occasionally balance, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds; frequently stoop; avoid concentrated exposure to vibration; and avoid even moderate exposure to hazards. Tr. at 126-29, 14245.
Plaintiff continued to endorse low back and foot pain on December 8, 2021. Tr. at 1370. She rated it as a nine. Id. Dr. Choudhari's findings were consistent with the most recent physical exams. Tr. at 1371. He refilled Percocet. Tr. at 1372.
Plaintiff rated low back and foot pain as a nine on April 15, 2022. Tr. at 1373. A physical exam was consistent with Dr. Choudhari's prior findings. Tr. at 1374. He refilled Percocet. Tr. at 1375.
On June 28, 2022, Plaintiff reported blood glucose greater than 200 mg/dL and symptoms of dizziness, blurred vision, foot paresthesia, and weakness. Tr. at 1377. She described waxing and waning hypertension with recent low blood pressure. Id. Dr. Ashe ordered lab studies, continued medications for peripheral artery disease (“PAD”), hyperlipidemia, and hypertension, and prescribed Novolog five units three times daily, Glargine Basaglar 30 units twice daily, and Metformin 1000 mg once daily. Tr. at 1378. The lab studies revealed Plaintiff's A1C to be 13.8%. Tr. at 1382.
Plaintiff complained of fatigue and new shooting pain to her right heel on September 30, 2021. Tr. at 1307. Dr. Malhotra observed Plaintiff's right and left great toe amputations were well-healed. Id. He noted Plaintiff's pain appeared to be neuropathic in nature. Tr. at 1308. He stressed the importance of Plaintiff taking Plavix and aspirin and indicated she would benefit from a statin. Id. He ordered a check of Plaintiff's A1C level and increased Neurontin. Id. Testing revealed Plaintiff's A1C to be greater than 12.5%. Tr. at 1309.
On February 10, 2022, Plaintiff complained of severe pain in her bilateral toes, right greater than left, upon lying down and ambulating long distances. Tr. at 1311. Dr. Malhotra prescribed a statin and Cipro for a possible urinary tract infection. Tr. at 1316. He was concerned by a change in Plaintiff's pedal signs and new rest pain and noted a Rutherford stage four classification for PAD. Id. He ordered urgent arterial duplex studies of the bilateral lower extremities and an A1C check. Id.
Plaintiff continued to complain of severe pain in her bilateral toes when lying down at night and ambulating long distances on March 3, 2022. Tr. at 1317. Dr. Malhotra noted the recent arterial duplex study showed greater than 75% stenosis at the right SFA and greater than 50% stenosis at the profunda femoris artery (“PFA”). Tr. at 1322. He stated Plaintiff met criteria for endovascular revascularization and planned on right SFA angioplasty with possible stenting. Id.
On March 23, 2022, Dr. Malhotra performed right SFA atherectomy with stent and angioplasty, diagnostic angioplasty, and ultrasound-guided vascular access. Tr. at 1335-36. It revealed 90% stenosis in two segments of the right SFA. Tr. at 1336.
Plaintiff complained of pain in her right leg with ambulation on March 29, 2022. Tr. at 1343. She indicated she had been “great” for two days following surgery, but subsequently developed pain that radiated down her leg and into her foot. Id. Dr. Malhotra noted “bounding pulses” and some swelling in the right foot. Tr. at 1348. He recommended Plaintiff wear light knee-high compression stockings and follow up in a week. Id.
On October 7, 2022, Plaintiff complained of abdominal pain, breaking out in a sweat when she would lie down at night, and elevated blood pressure. Tr. at 62. Dr. Ashe noted Plaintiff had uncontrolled diabetes and was noncompliant with medications, as she had not filled Glargine Basaglar. Id. He sent a prescription for extended-release Basaglar to Plaintiff's pharmacy and indicated she should restart Metformin since discontinuing it had not improved her abdominal pain. Tr. at 63. He changed Plaintiff's blood pressure medication from Lisinopril to Diovan-HCT 160-25 mg, but noted it “may not make a diff since pt is non-compliant.” Id. Lab studies indicated A1C of 12.2%, high glucose, blood urea nitrogen, and creatine, and low estimated glomerular filtration rate, carbon dioxide, albumin, red blood cell count, hemoglobin, and hematocrit. Tr. at 69-72.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she was unable to work because having her two toes amputated caused her to be off-balance and unable to stand, walk, or sit for long periods. Tr. at 79. She said prolonged sitting caused her to feel sharp pain in her back and numbness in her toes. Id. She stated her toes felt numb most of the time, but particularly upon sitting and lying down. Id. She indicated she had difficulty sleeping and would attempt to lie flat in her bed. Tr. at 80. However, she said that if she could not sleep, she would transition to her couch, where she would fall asleep in an upright position. Id.
Plaintiff confirmed her diagnoses as diabetes with recurrent foot ulcers and insulin-dependence, history of right and left great toe amputation, headaches, and obesity. Id. She stated she had difficulty controlling her blood sugar and had glucose readings into the 500s. Id. She noted her doctor had increased her insulin, but the increased dose had not helped. Tr. at 81. She indicated she used a walker daily for ambulation because it helped her to balance and avoid falls. Tr. at 81-82. She said she had sustained two falls while getting out of the shower. Tr. at 82. She testified she noticed increased pain and numbness in her feet after sitting for 30 minutes to an hour. Tr. at 83.
Plaintiff confirmed she experienced numbness in her hands, as well. Tr. at 82. She stated she had undergone prior carpal tunnel surgeries to both hands that had not provided relief. Id. She said she had difficulty writing, typing, and holding items in her hands. Tr. at 82-83.
Plaintiff endorsed a history of two “light heart attacks” in August 2015. Tr. at 83. She said she experienced intermittent chest pain and had shortness of breath when performing household chores. Id.
Plaintiff testified she lived with her 13-year-old son. Id. She said she required assistance in caring for him. Id. She indicated her brother and sister would often come over to cook for her and her son or bring them dinner. Id. She stated she mostly stayed in bed throughout the day because she did not have energy to get up and do anything. Tr. at 84. She denied being able to climb stairs. Id.
Plaintiff stated she had difficulty seeing at night. Id. She indicated her doctor had prescribed steroid eye drops. Id. She noted she had elevated blood pressure and her doctor had recently increased her medication. Id. She said she remained able to drive about twice a week, but not for long periods, and mostly rode with a friend. Tr. at 88. She noted she used a scooter in the grocery store. Id. She explained she would sit on her walker to wash dishes on a good day, but her family members mostly performed her household chores. Tr. at 89. She stated she had begun to use the walker two months after her first toe was amputated. Tr. at 94.
Plaintiff confirmed that she had stopped her childcare work in March 2020 because her health was worsening. Tr. at 87. She stated she was experiencing significant pain in her toe and visited the ER, where she was informed that she had a blister that would resolve on its own. Tr. at 87-88. She indicated she subsequently visited the Medical University of South Carolina's (“MUSC's”) hospital in Lancaster, where she was informed that the infection had spread throughout her body and her toe would have to be amputated. Tr. at 88. She said no portion of her great toes remained. Tr. at 89.
b. Vocational Expert Testimony
Vocational Expert (“VE”) James Primm reviewed the record and testified at the hearing. Tr. at 92-94. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the sedentary exertional level; never operate foot controls or climb stairs, ladders, ropes, or scaffolds; occasionally climb ramps, balance, stoop, kneel, crouch, crawl, and push and pull with the lower extremities; must alternate between sitting and standing by standing for about five to 10 minutes after every hour of sitting; and must avoid slippery and wet conditions and exposure to extreme temperatures. Tr. at 92. She asked whether there were any jobs in the economy that the hypothetical person could perform. Id. The VE identified sedentary jobs with a specific vocational preparation (“SVP”) of 2 as a document preparation clerk, Dictionary of Occupational Titles (“DOT”) No. 249.587-018, an addresser clerk, DOT No. 209.587-010, and a call-out operator, DOT No. 237.367-014, with 72,000, 31,000, and 20,000 positions in the national economy, respectively. Tr. at 92-93.
The ALJ asked the VE to further assume the individual would be limited to frequent handling and fingering. Tr. at 93. She asked if the same jobs would remain. Id. The VE confirmed that they would. Id.
The ALJ asked the VE if the same jobs would remain if the individual required use of a wheeled assistive device for balance while standing and walking. Id. The VE stated the DOT did not address use of a wheeled assistive device, but that it would be his opinion, based on his education, training, and experience, that use of a wheeled assistive device would present a considerable fall risk to potential employers, effectively limiting all competitive work at the sedentary level and resulting in no jobs. Id.
Plaintiff's counsel asked the VE to consider that the individual would be limited to occasional fingering. Tr. at 94. He asked if that would eliminate all work. Id. The VE confirmed that it would. Id.
Plaintiff's counsel asked the VE to consider that the individual would be off-task for 15% of the day. Id. He questioned whether this would eliminate all work. Id. The VE testified it would. Id.
Plaintiff's counsel asked if it would eliminate all work if the individual were to be absent more than twice a month. Id. The VE stated it would. Id.
The VE indicated his testimony had been consistent with the DOT, except that any opinions regarding issues not directly addressed in the DOT had been based on his education, training, and experience. Id.
2. The ALJ's Findings
In her decision, 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 December 31, 2022.
2. The claimant has not engaged in substantial gainful activity since July 15, 2020, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: diabetes mellitus (“diabetes”) with recurrent foot ulcers status post right and left great toe amputations; peripheral artery disease; and hypertension (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, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can occasionally climb ramps but never stairs, ladders, ropes, or scaffolds. She can occasionally balance as balance is defined in the SCO. She can occasionally stoop, kneel, crouch, and crawl. She must alternate between sitting and standing by standing for about five to ten minutes after every hour of sitting, while remaining on task. She can occasionally push/pull with the lower extremities. She cannot operate foot controls. She must avoid slippery and wet conditions. She must avoid exposure to extreme temperatures. She can frequently handle/finger bilaterally.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on December 27, 1974 and was 40 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education (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 July 15, 2020, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. at 8-17.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not explain the RFC assessment in accordance with SSR 96-8p;
2) the ALJ failed to properly evaluate her subjective symptoms; and
3) the ALJ erred in assessing the severity and considering the combined effect of all her impairments.
The Commissioner counters that substantial evidence supports the
ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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 at least 12 consecutive 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, 460 (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 she 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 her 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 Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does 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, she 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 her 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; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see.
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 past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she 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. Subpart P, §§ 404.1520(a), (b), 416.920(a) (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her 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 Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3). Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the 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 she 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 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, 1157-58 (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. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; 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). 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).
B. Analysis
1. RFC Assessment
Plaintiff argues the ALJ did not explain the RFC assessment in accordance with SSR 96-8p. [ECF No. 15 at 18-23]. She specifically claims the ALJ failed to explain her reasons for concluding a walker was not medically-necessary. Id. She asserts the records the ALJ relied on as showing normal gait were for the period prior to her second amputation and the ALJ ignored records that showed abnormal gait and prescriptions for a walker or rollator. Id. at 21-23.
The Commissioner argues Plaintiff failed to prove she would require use of a walker in performing sedentary work. [ECF No. 17 at 9-14]. She claims Plaintiff is asking the court to reweigh the evidence. Id. She maintains the ALJ thoroughly explained why the record supported the restrictions in the RFC assessment, but did not support use of a walker. Id. at 10-13.
The claimant's RFC represents the most she can still do, despite limitations imposed by her impairments and symptoms. 20 C.F.R. § 404.1545(a). The ALJ must base the RFC assessment on all the relevant evidence in the case record, which may include, but is not limited to, the claimant's medical history, medical signs and laboratory findings, the effects of treatment and side effects of medications, reports of activities of daily living (“ADLs”), recorded observations, medical source statements, effects of symptoms, and other lay evidence. SSR 96-8p, 1996 WL 374184, at *2, *5.
The RFC assessment must:
1. [c]ontain a thorough discussion and analysis of the objective medical and other evidence, including the individual's complaints of pain and other symptoms and the adjudicator's personal observations, if appropriate;
2. [i]nclude a resolution of any inconsistencies in the evidence as a whole; and
3. [s]et forth a logical explanation of the effects of the symptoms, including pain, on the individual's ability to work.Id. at *7.
“The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)).
Dr. Nazer ordered a walker for Plaintiff when he discharged her from CMC on March 1, 2021. Tr. at 1064-65. It does not appear that this order was filled. On March 17, 2021, Plaintiff complained of left foot pain, swelling, and trouble walking and requested an assistive device for walking. Tr. at 1299. Dr. Ashe noted Plaintiff's functional gait abnormality and ordered a rollator. Tr. at 1300. On March 30, 2021, Dr. Ashe again noted functional gait abnormality and resubmitted the order for a rollator. Tr. at 1302. During the hearing, Plaintiff stated she used a walker daily for ambulation because it helped her to balance and avoid falls. Tr. at 81-82.
The ALJ wrote the following concerning Plaintiff's use of a walker:
Even though the claimant testified that she uses a walker, the undersigned does not find a walker medically necessary as the record has indicated that the claimant presented to exams with a normal gait after both toe amputations (Exhibit B10F/5). In responses to an impairment questionnaire from August 2020, the claimant indicated that she only used a motorized scooter when she went to the store (Exhibit B3E).Tr. at 13.
“To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).” SSR 96-9p, 1996 WL 374185, at *7.
Dr. Nazer provided no explanation for the order, and Dr. Ashe noted he was ordering the rollator due to Plaintiff's “functional gait abnormality,” but did not describe the circumstances for which it was needed. The undersigned agrees with the Commissioner that Dr. Nazer's and Dr. Ashe's records fall short of establishing that a walker was medically-required. However, the court cannot accept the Commissioner's post-hoc argument because its review is limited to whether substantial evidence supports the explanation the ALJ provided, and the ALJ did not address the doctors' orders in explaining his conclusion. See Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 109 (4th Cir. 2020) (rejecting the Commissioner's argument as “a meritless post-hoc justification”) (citing Radford, 734 F.3d at 294 (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (“[C]ourts may not accept appellate counsel's post hoc rationalizations for agency action.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)); Snell v. Apfel, 177 F.3d 128, 124 (2d Cir. 1999) (applying Burlington Truck in a Social Security disability case)).
The ALJ's explanation for finding a walker was not medically-required fails to meet SSR 96-8p's condition that she “explain how any material inconsistencies or ambiguities in the case record were considered and resolved.” As noted above, the ALJ did not address Drs. Nazer's and Ashe's orders for a walker and rollator. Although she referenced Plaintiff's August 2020 report at Exhibit B3E of only using a motorized scooter when she visited the grocery store and an observation of normal gait on March 4, 2021, at Exhibit B10F/5 (Tr. at 1248), she failed to reconcile other evidence of Plaintiff's gait impairment in the weeks leading up to her second amputation. See Tr. at 1299, 1301. The ALJ erred in finding Plaintiff presented to exams with normal gait after both toe amputations, Tr. at 13, as neither she nor the Commissioner has referenced records reflecting such an observation,and the undersigned's review fails to yield any provider's observation of Plaintiff's ambulation and gait following her second amputation.
The Commissioner claims Tr. at 1248 reflects normal gait in June 2021. [ECF No. 17 at 12]. However, the undersigned's review reveals this to be a March 4, 2021 record that was printed on June 2, 2021. See Tr. at 1248.
The Fourth Circuit has repeatedly cautioned against ALJs' cherrypicking the record by citing “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); see also Arakas, 983 F.3d 83, 98 (4th Cir. 2020); Stoker v. Saul, 833 Fed. App'x 383, 386 (4th Cir. 2020). This court has considered similar error and found remand necessary in prior cases similar to this one. In Neal v. Berryhill, C/A No. 9:i8-545-TLW-BM, 2019 WL 4359546, at *4-5 (D.S.C. May 29, 2019), report and recommendation adopted by 2019 WL 4345297 (Sept. 12, 2019), this court noted the ALJ failed to adequately consider evidence to the contrary in concluding the claimant did not require an assistive device for ambulation. Similarly, in Theresa M. v. Kijakazi, C/A 1:21-2660-SVH, 2022 WL 780780, at 16 (D.S.C. Mar. 15, 2022), the court found the ALJ cherrypicked the record and ignored evidence to the contrary in concluding the plaintiff did not require a rollator and declined to accept the Commissioner's post hoc argument that the record lacked sufficient documentation to establish that a rollator was medically-necessary.
In light of the foregoing, the undersigned recommends the court find the ALJ erred in evaluating the claimant's RFC to the extent he failed to adequately support and explain his conclusion that use of a walker was not medically-necessary.
2. Subjective Symptom Evaluation
Plaintiff argues the ALJ did not properly evaluate her subjective allegations as to symptoms. [ECF No. 15 at 23-25]. She maintains the ALJ failed to specify which of her statements she accepted and which she considered inconsistent with the other evidence. Id. at 24.
The Commissioner asserts the ALJ conducted a proper evaluation of Plaintiff's subjective complaints. [ECF No. 17 at 15]. She maintains the ALJ credited Plaintiff's subjective allegations to the extent they were supported by the record, but determined that her subjective allegations were not entirely supported by the objective medical evidence and that she was noncompliant with medications and treatment regimens. Id. at 16-17.
“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)). “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)). If the ALJ concludes the impairment could reasonably produce the symptoms the claimant alleges, she is to proceed to the second step, which requires her to “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)).
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 claimant's] statements and the rest of the evidence, including [the claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [her] symptoms affect [her].” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Factors relevant to this inquiry include the claimant's ADLs, the location, duration, frequency, and intensity of her pain or other symptoms, factors that precipitate or aggravate her pain or other symptoms, the type, dosage, effectiveness, and side effects of her medications, other treatment she has received for relief of pain or other symptoms, other measures she has used to relieve pain or other symptoms, and any other factors concerning her functional limitations due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The ALJ must explain which of the claimant's alleged symptoms she found “consistent or inconsistent with the evidence in [the] record and how [her] evaluation of the individual's symptoms led to [her] conclusions.” SSR 16-3p, 2017 WL 5180304, at *8. She “must build an accurate and logical bridge” between the evidence and [her] conclusion as to the intensity, persistence, and limiting effects of the claimant's symptoms. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Afpel, 277 F.3d 863, 872 (7th Cir. 2000)).
The ALJ found Plaintiff's “medically determinable impairments could be reasonably expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence, and limiting effects of these symptoms are not consistent with the medical evidence and other evidence in the record.” Tr. at 12. She indicated:
After evaluating the objective medical evidence in the record, it indicates that the claimant was more than capable of performing work activity consistent with the above residual functional capacity during her alleged period of disability. Specifically, the claimant's diagnostic tests, physical exams, and treatment history strongly support the claimant's ability to do sedentary work with environmental, postural, foot controls, manipulative, and sit/stand limitations.Id. She noted the record reflected “the claimant has had periods of noncompliance with her medications and treatment regimens (Exhibit B3F/29, 34; B10F/10, B20F/2).” Tr. at 13. She explained:
Because of the above findings, the undersigned limited the claimant to the residual functional capacity noted above with the additional limitations. More specifically, the undersigned limited the claimant to sedentary work with the additional postural and environmental limitations due to the claimant's diabetes with recurrent foot ulcers status post right and left great toe amputation; peripheral artery disease; and hypertension (Exhibit B1F; B3F; B7F; B10F). Additionally, the undersigned considered deficits and limitations related to the claimant's impairments demonstrated on exams. For instance, during some exams, the claimant demonstrated recurrent diabetic ulcers resulting in her right and left great toe amputations; 2+ pitting edema of the
right leg at the ankle/foot/digital; 1+ diminished left dorsalis pedis pulse; absent right dorsalis pulse in the right lower extremity; blood pressure readings as high as 192/106; and blood sugar levels as high as 511 (Exhibit B2F; B7F; B1F; B3F). The claimant also demonstrated diminished hair growth on her lower extremities; decreased vibratory sensation; and decreased monofilament sensation (B10F). The undersigned limited the claimant to sedentary work with postural limitations and a sit/stand option due to the claimant's testimony and statements that she has difficulty standing and sitting for prolonged periods of time, and she has problems balancing due to her amputations (Hearing). The undersigned limited the claimant to push/pull limitations and no foot controls due to the claimant's peripheral artery disease, reduced sensation in her lower extremities, and her bilateral great toe amputations (Exhibit B7F; B10F; B1F; B10F). The undersigned limited the claimant in manipulative limitations due to the claimant's remote bilateral carpal tunnel releases (Exhibit B17F/5).Tr. at 14. She subsequently wrote: “In sum, having considered all the evidence, including the medical records not cited herein, the undersigned finds the claimant's allegations of disabling impairments unsupported. However, consistent with the record, the undersigned reduced the residual functional capacity as indicated above, in accordance with the claimant's medically supported limitations.” Tr. at 16.
The undersigned finds the ALJ's consideration of Plaintiff's subjective allegations to be insufficient. Her explanation fails to comply with SSR 96-8p's direction that “[c]areful consideration must be given to any available information about symptoms because subjective descriptions may indicate more severe limitation or restrictions than can be shown by objective medical evidence alone.” The above explanation emphasizes the objective evidence.
As the Fourth Circuit explained, the regulations provide that 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.” Lewis, 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). “Thus, [the claimant's] subjective evidence of pain intensity cannot be discounted solely based on objective medical findings.” Id. Although the ALJ provided a narrative discussion to support her RFC assessment, she focused primarily on the medical facts and ignored the nonmedical evidence. See SSR 96-8p (“The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). (emphasis added)
While the ALJ referenced Plaintiff's “periods of non-compliance,” she did not explain how these periods of non-compliance led to her conclusions. She credited Plaintiff's testimony in imposing a sit-stand option and rejected her testimony regarding use of a walker, but did not specifically indicate which of Plaintiff's other allegations she accepted and rejected. See id. (citing Radford, 734 F.3d at 295). Nowhere in the decision does the ALJ address Plaintiff's pain descriptions and ratings, her ADLs, or her continued treatment with opioid pain medications.
Therefore, the undersigned recommends the court find the ALJ did not consider Plaintiff's subjective allegations in accordance with the applicable regulations, SSRs, and Fourth Circuit precedent.
3. Combined Effect of Impairments
Plaintiff argues the ALJ failed to consider her impairments in combination, including her lumbar impairment and headaches, as required by the applicable regulations and Fourth Circuit precedent. [ECF No. 15 at 14-18].
The Commissioner asserts the ALJ considered headaches as a symptom of hypertension and substantial evidence supports her ALJ's conclusion that Plaintiff's headaches and lumbar spine problems were not severe. [ECF No. 17 at 6-9]. She maintains the ALJ continued past step two in the sequential evaluation process and stated the RFC assessment accounted for the deficits Plaintiff demonstrated on exams and her subjective allegations. Id. at 8.
In light of the above recommendation for remand and given that the record may be supplemented with additional evidence regarding Plaintiff's headaches and lumbar impairment, the undersigned declines to address the third allegation of error.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED.
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).