C/A No. 5:19-0831-MGL-KDW
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) 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") pursuant to the Social Security Act ("the Act"). The issue before the court is whether the Commissioner's decision is supported by substantial evidence. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action.
I. Relevant Background
A. Procedural History
On October 20, 2014, Plaintiff filed applications for DIB and SSI benefits under Title II and Title XVI of the Act, 42 U.S.C. §§ 401-433, alleging a disability onset date of February 21, 2014. Tr. 260-69. Plaintiff's applications were denied initially, Tr. 123-26, and upon reconsideration, Tr. 165-66, and in January 2016 Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 184. The administrative hearing was held on September 14, 2017. Tr. 45-92. On February 1, 2018, the ALJ issued an unfavorable decision, finding Plaintiff not disabled within the meaning of the Act. Tr. 9-28. Plaintiff requested review of the ALJ's decision. Tr. 256-57. On April 3, 2018, the Appeals Council acknowledged Plaintiff's request for review and granted her 25 days to submit additional information. Tr. 38. On January 30, 2019 the Appeals Council denied Plaintiff's request for review. Tr. 1-5. Thus, the ALJ's decision became the final decision of the Commissioner of Social Security. Tr. 1. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on March 19, 2019. ECF No. 1.
Although the Application Summaries are dated October 27, 2014, the Disability Determination and Transmittal forms indicate a filing date of October 20, 2014. Tr. 123, 126.
B. Plaintiff's Background
Plaintiff was born in May 1974. Tr. 282. She was 39 years old on her alleged disability onset date of February 21, 2014, Tr. 282, and 43 years old at the time of her administrative hearing, Tr. 50. In her November 7, 2014, Disability Report-Adult form Plaintiff indicated that her highest level of completed education was 10th grade, she did not attend special education classes, and she had not completed any type of specialized job training, trade or vocational school. Tr. 298. Plaintiff identified her past relevant work ("PRW") as retail store customer service (1999-2000), restaurant customer service/waitress (2000-2004), cleaning/maid service (2005-2010), and home health aide (2010- Feb. 2014). Id. In her Disability Report Plaintiff indicated she stopped working on February 21, 2014 due to her conditions of neuropathy, degenerative disc, bone spurs in neck, arthritis in neck, migraines, scoliosis, brain lesions, B12 deficiency, forgetfulness, and blurred vision. Tr. 297. Plaintiff indicated that she was 5'2" tall, weighed 130 pounds, and her conditions caused her pain or other symptoms. Id.
In a Disability Report-Appeal dated May 5, 2015, Plaintiff indicated changes in her condition occurring in January 2015. Tr. 314. The report noted the following: "Migraine headaches have gotten worse. I have been having about two a week that last at least ½ day or longer." Id. Plaintiff also noted a new medical condition and indicated that on March 28, 2015 she went to the emergency room for chest pain. Upon referral to a cardiologist she was found to have "slightly high cholesterol also found kidney stones." Id.
In a subsequent Disability Report-Appeal dated January 19, 2016, Plaintiff indicated a worsening in her medical condition as of June 2015. She noted: "Daily Headaches more intense also migraines are more intense and more frequent and last longer. Fatigue is worse just can't get going and I get tired very easy." Tr. 326. She noted new medical conditions as of August 2015 as follows: "Chronic lower back pain. Lower back hurts when standing too long, walking too long, sweeping, mopping even sitting too long, daytime sleepiness." Id. Plaintiff also noted the following regarding changes to her daily activities: "My problems with physical activities has [sic] gotten worse. I have excessive sleepiness during the day. When trying to do household task, I get tired fast and my back starts hurting. My legs, feet, hands and arms burn and tingle all the time." Tr. 330.
C. The Administrative Proceedings
Plaintiff and her counsel appeared for an administrative hearing on September 14, 2017, in Greenville, South Carolina before ALJ Julie Petri. Tr. 45. VE Vincent Hecker, PhD, also appeared and testified. Id.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff confirmed that she was born in May 1974, was 43 years old, was 5'2" tall and weighed 144 pounds. Tr. 50. When asked if her weight was stable Plaintiff responded that she lost weight at the first of the year because of kidney stones and was now gaining weight. Tr. 50-51. Plaintiff testified that she was right-handed, was not married, and lived with her boyfriend and 18-year-old son. Tr. 51. Plaintiff stated that her boyfriend works, and she had received unemployment benefits 16 years ago. Id. Plaintiff testified that she had a driver's license but did not drive long distances—which she indicated would be 20 minutes—because her "arm will like tingle and get numb, and [her] neck." Tr. 52. Plaintiff stated that she last worked in 2014 and stopped working because she was in home healthcare and could not lift or physically handle her patient. Tr. 52-53. Plaintiff confirmed that she had self-employment income in 2014 in the amount of $1,763 from cleaning houses. Tr. 53. Plaintiff stated that the home health aide work was through the company Corporate Care, LLC from 2011 to 2014. She worked full-time for Molly Maid doing housecleaning from 2009 to 2010, and she also worked as a waitress but could not recall the dates. Tr. 53-55. Plaintiff testified that she could no longer work because of a deteriorating disc in her neck and migraine headaches. Tr. 55. Plaintiff stated that she has headaches four times a week and the medication she takes to help with her headaches, neck, and shoulder issues makes her drowsy. Id. Plaintiff stated that she sleeps a lot and stays very fatigued. Id. When asked about her mental health Plaintiff testified that she has a lot of "episodes" and she will cry. Tr. 56. Plaintiff testified that her mother, brother, and grandmother died within a year and that was "really bothering" her, and she was "depressed a lot." Id.
In response to questions from her attorney Plaintiff clarified that she worked as a food server from 2002 to 2003 at Fatz Café and Lutz Barbeque, she worked for less than six months at Dollar General as a cashier stocker, from 2005 to 2008 she did office and home cleaning for the Cleaning Authority, and from 2009 to 2014 she worked as a home health aide at Corporate Care. Tr. 56-57. Plaintiff testified that she finished the tenth grade and she took the GED but failed it. Tr. 58. Plaintiff stated that she reads but she is "slow." Id. Plaintiff stated that she does not understand everything that she reads and is unable to pay attention to her reading because her "mind just wanders." Tr. 59. Plaintiff testified that she had pain daily in her neck and head and after 10-15 minutes the pain would distract her from what she was doing, and she would have to stop. Id. Plaintiff testified that she cannot remember what she read, her memory is not very good, she needs reminders, and could "probably not" balance a checkbook. Tr. 59-60. Plaintiff testified that she could add and subtract but she never learned multiplication. Tr. 60. Plaintiff stated that she is unable to keep up with her bills and her "boyfriend pretty much keeps up." Id. Plaintiff testified that her handwriting is "sloppier than it used to be" and she physically cannot write too long. Tr. 61. Plaintiff stated that her headaches began in 2010 and got worse over time. Id. Plaintiff testified that she is being treated for her headaches by her neurologist Dr. Besliu and before that she was going to the Neurology Clinic at Greenville Hospital. Id. Plaintiff confirmed that she has headaches every day and a some turn into migraines a few times a week. Tr. 62. Plaintiff testified that it feels like she has "a pressure on [her] head all the time." Id. Plaintiff stated that the headaches are always on the left side. Id. Plaintiff testified that the milder headaches are "there and they never go away." Id. She stated that she will "usually lay down for a while, and then [she'll] get up for a little while and then [she has] to lay back down." Tr. 63. Plaintiff stated that she lies down eight-to-ten hours a day to relieve her headaches. Id. Plaintiff stated that her migraines are very painful and she rated them between eight and nine on a ten-point scale. Id. Plaintiff stated that sometimes she had that level pain for four hours, and sometimes it would be for eight hours. Id. Plaintiff testified that she had all-day migraines about four times a week and on those days she is able to do "[n]othing." Tr. 64. Plaintiff confirmed that she cannot leave the house, she cannot concentrate or focus on any activity, and she is not able to get up and move around. Tr. 65. Plaintiff testified that when she has a migraine she is bothered by light and loud sounds. Id. She stated that she lies in bed in the dark with ice or heat on her neck or head. Id. Plaintiff stated that she takes migraine medication when she has a migraine but can only take it three times a week but confirmed she has had times when she would need it more than three times a week. Id. Plaintiff stated that in those instances she would "just try to do the ice or heat." Tr. 66. Plaintiff also confirmed that she has gone to the emergency room in Greer or Greenville for migraines. Id. Plaintiff testified that she has brain lesions that were discovered through MRI in 2009. Plaintiff stated that she has an MRI at least once a year. Id. Plaintiff stated that the MRI results have been inconclusive for multiple sclerosis, and she did not think the lesions have changed. Tr. 67 Plaintiff testified that Dr. Besliu diagnosed her with nerve damage in her leg and her lower back. Id. Plaintiff clarified that the pain was in her middle back and the left side of her body. Tr. 68. Plaintiff stated that she always has the back pain and it felt like an "aching", but she felt sharp pain if she walked too much. Id. Plaintiff stated that she has pain in her lower back daily and it "can get up to a seven" pain level. Id. Plaintiff testified that the pain worsens with walking, sitting too long, or standing too long. Tr. 69. Plaintiff stated that she can walk or stand for 15-20 minutes without a break before the pain worsens. Id. Plaintiff stated that to relieve the pain she would have to lie down for 30 minutes to an hour. Id. Plaintiff stated that she could sit continuously for up to 30 minutes before needing to shift or lie down for about an hour. Tr. 69-70. Plaintiff testified that Dr. Besliu prescribed her Flexeril for her back and neck pain. Tr. 70. Plaintiff testified that she feels "weak in [her] neck" and it just hurts. Tr. 71. Plaintiff stated that if she sits up too long without having her neck resting on something, after 15-20 minutes she would need to lie down or rest it on something. Id. Plaintiff confirmed that the pain in her neck affected both arms but affected the left arm more. Id. Plaintiff testified that the pain goes all the way down both her arms to her fingers. Tr. 72. Plaintiff stated that pain keeps her from writing or "using anything with [her] hands." Id. Plaintiff stated that her legs continue to tingle. Id. She stated that she has numbness and tingling in her legs daily throughout the entire day. Tr. 73. Plaintiff stated that she lies down to relieve the pain. She testified that she was told at the ER that the problems with her legs were caused by nerve damage and sciatica. Id. Plaintiff testified that she had her first visit with an orthopedic doctor the day before the hearing and she was given an injection. Id. Plaintiff stated that the doctor said nothing about her back and "he was looking mainly at [her] hip because [she] had problems with it, and he said it was bursitis." Tr. 74. Plaintiff stated that she was referred to the orthopedist by her regular doctor, Dr. Cotter, a general practitioner. Id. Plaintiff stated that when she went to the emergency room in July for hip and back pain she was told she had sciatica, but when she followed up with Dr. Cotter he told her that she had bursitis and he referred her to the orthopedist. Tr. 75. In response to her attorney Plaintiff testified that she thought she recalled that someone had diagnosed her with peripheral autonomic neuropathy in her legs. Tr. 76. Plaintiff testified that the three middle toes on her left foot "go numb a lot" and she has pain and has problems walking or standing "because it's like limping when [she] get[s] up." Id. With regard to her depression Plaintiff testified that she gets anxiety and does not like to be around a lot of people. Id. Plaintiff stated that she has anxiety attacks a "couple times a week maybe, few times." Tr. 77. Plaintiff stated that her "heart will start pumping" and she indicated that it felt as though her heart was in her throat. Id. Plaintiff stated that when she was feeling like that she just wants to go lie down and it takes an hour to recover. Id. Plaintiff stated that she does not know when an anxiety attack is coming on. Tr. 78. Plaintiff testified that she is on Prozac that was recently increased from 40 milligrams to 60 milligrams. Plaintiff stated she sees a nurse practitioner who prescribed the Prozac every two-to-three months. Id. Plaintiff testified that she was not seeing any mental health counselors, but the nurse practitioner talks to her and "tries to help [her] through things and counsels too." Tr. 79. Plaintiff testified that she has crying spells a couple of times a week that last half a day to all day. Id. Plaintiff confirmed that when she has migraine headaches she is unable to communicate with others or perform work activity. Tr. 80. Plaintiff confirmed that she was seen by a neurosurgeon in 2013 and 2014 for her neck and she diagnosed Plaintiff with neuropathy. Plaintiff also confirmed that she had some physical therapy. Id. Plaintiff testified her current treating doctors are Dr. Cotter at New Horizon, the neurologist Dr. Besliu, and the orthopedist she just saw the day before. Id.
The transcript incorrectly spells the doctor's name as "Beshlu." However, the correct spelling is "Besliu." See treatment note of Dr. Sergiu Besliu of Neuroscience Associates, Tr. 1333-34. The correct spelling will be used throughout this Report.
Plaintiff testified that she has been treated for vertigo and it is a problem a few times a week. Tr. 81. Plaintiff stated that she feels "really dizzy" and will "just lay down." Id. Plaintiff stated that she has been prescribed Meclizine for the vertigo. Id. Plaintiff denied using a cane, crutches, or any sort of special clothing as treatment for any of her problems. Id. Plaintiff denied using a TENS unit or back brace. Id. Plaintiff testified that the heaviest amount she could lift was five pounds. Id. Plaintiff stated that she is unable to lift overhead and if she tried it would hurt and she would have neck pain. Tr. 82. Plaintiff denied being able to make a "strong fist" with both hands and denied being able to hold onto tools. Id. Plaintiff stated that she drops items like spoons, she is not able to push and pull objects, and she can bend over but not without pain. Id. Plaintiff denied being able to squat, crawl, climb stairs, or climb ladders. Tr. 83. Plaintiff stated she did not have any steps in her house. Id. Plaintiff stated that she slept a couple of hours at night and wakes up because of her neck. She stated she has to move around to get comfortable and her legs ache at night. Id. Plaintiff confirmed that during the day she reclines with her legs elevated because it helps her relax. Tr. 83-84. Plaintiff testified that she does not have to have help with personal care, dressing, or bathing. Tr. 84. Plaintiff stated that she has to be reminded to take her medications. Id. Plaintiff stated that she leaves her house once a week to go to the store and she only stays in the store about ten minutes because she cannot walk long, and she does not like to be around people. Tr. 85. Plaintiff testified she is not able to do any housework; she does not try to vacuum or do laundry. Id. Plaintiff stated that she is not able to prepare meals, but she can make a sandwich. Tr. 86. Plaintiff testified that with the medication drowsiness she nods off about five times a day and naps for a "[c]ouple hours probably." Id. Plaintiff confirmed that she tried to attend voc rehab, but she was late "all the time." Tr. 86-87. Plaintiff testified that she wants to work but when she gets up she is "so fatigued, [she] haven't slept good, [she's] been up with a migraine or headache." Tr. 87. Plaintiff affirmed that the headaches affect her attendance. Id. Plaintiff stated that she left voc rehab when she got kidney stones and had to have surgery. Tr. 87-88. When the kidney stones issue resolved she was told by voc rehab that she could not come back. Tr. 88. Plaintiff stated that her kidney stones were in the first quarter of 2017 and she was refused by voc rehab in June. Tr. 88-89.
2. VE Testimony
The ALJ asked VE Hecker to describe Plaintiff's PRW in housekeeping and home health. Tr. 90. The VE described the jobs as follows: "Housekeeping, maid would be light, [SVP] 2, [DOT] 323.687-014. Home health would be medium, [SVP] 3, occasionally heavier, [DOT] 354.377-014." Id. The ALJ asked the VE to consider a hypothetical individual of the same age, education, and with the past jobs as described with the following limitations:
hypothetical number one is light work except this hypothetical individual could never climb ladders, ropes, or scaffolds but could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl, overhead reaching, handling, and fingering, all those bilaterally of course, are all limited to frequent. She could have frequent exposure to excessive noise or workplace hazards, and she would be further limited to simple routine tasks performed two hours at a time.Id. The ALJ asked if that would preclude all past work and the VE responded that it would preclude the job of home health worker but PRW as a maid is "doable." Id. The ALJ asked if there would be other jobs available and the VE responded with the following jobs at the unskilled, light level: marker/pricer, DOT 209.587-034, 1.9 million; assembler, DOT 706.684-022, 41,000; and ticket taker, DOT 344.627-010, 114,000. Tr. 91.
For her second hypothetical, the ALJ posed the same limitations as in the first hypothetical and added a "further limitation that this hypothetical individual would be absent from work three or more days per month." Tr. 91. The VE testified that there would be no jobs available. Id. The ALJ noted that the DOT did not address absenteeism and that information came from "research, education, speaking with other VEs, speaking with employers" and his own experience. Id.
Plaintiff's attorney had no questions for the VE but noted that Plaintiff would "rely on the hypothetical number two as it's consistent with the treating neurologist statement as to the frequency of the migraine headaches, and obviously combined with the pain and the documented problems in her neck and lower back as well." Tr. 91.
A. The ALJ's Findings
In her February 1, 2018 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 June 30, 2019.
2. The claimant has not engaged in substantial gainful activity since February 21, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease of the cervical and lumbar spine; neuropathy; recurrent headaches; recurrent migraines; and depression (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 light work as defined in 20 CFR 404.1567(b) and 416.967(b), except the claimant can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. She can frequently reach
overhead, handle, and finger bilaterally. The claimant can have frequent exposure to excessive noise and workplace hazards. She is limited to simple, routine tasks performed for two hours at a time.Tr. 15, 17, 20, 26, 28.
6. The claimant is capable of performing past relevant work as a Housekeeping Maid, DOT 323.687-014, which is generally considered unskilled, light work with an SVP of 2. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from February 21, 2014, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
B. 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," defined as:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(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, 461 n.2 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant 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 the claimant from performing specific jobs that exist in significant numbers in the national economy. 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. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii), § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "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, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b), § 416.920 (a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146 n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (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 the 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).
Plaintiff alleges that (1) the ALJ failed to properly evaluate the opinions of Dr. Besliu and (2) the Appeals Council should have considered new evidence submitted to it. Pl.'s Br. 2, ECF No. 13.
1. Evaluation of Opinion Evidence
Social Security regulations require that all medical opinions in a case be considered. 20 C.F.R. §§ 404.1527(6), 416.927(b). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. §§ 404.1527(b), 416.925(b). Statements that a patient is "disabled" or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). However, opinions reserved to the Commissioner must still be evaluated and accorded appropriate weight. SSR 96-5p, 1996 WL 374183, at *3."[T]he ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner." SSR 06-03p, 2006 WL 2329939, at *7. In reviewing the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence, because its role is not to "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. §§ 404.1520c, 416.927c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. §§ 404.1527, 416.927 are applicable.
a. Dr. Besliu's Opinion
Plaintiff alleges that Dr. Besliu's opinions "contain work-preclusive limitations which the ALJ improperly rejected." Pl.'s Br 21. The Commissioner contends that substantial evidence supports the ALJ's consideration of Dr. Besliu's conclusory opinion. Def.'s Br. 10, ECF No. 18.
Dr. Besliu submitted responses to a one-page, undated questionnaire. Tr. 1710. Dr. Besliu indicated that he had been treating Plaintiff for chronic headaches for two years. Id. He noted that Plaintiff would be expected to stay home due to chronic headaches "8-10" days per month, her headaches interfered with her ability to concentrate and maintain focus, and her medications caused side effects such as drowsiness. Id. When asked to describe the reasons for any work limitations suffered by Plaintiff due to headaches Dr. Besliu noted: "During an exacerbation patient requires rest in a quiet dark room. Patient also requires office visits as well as procedure visits." Id.
The document has a fax header date of August 15, 2017. Tr. 1710. --------
b. The ALJ's Consideration of the Opinion
The ALJ considered this opinion of Dr. Besliu and "afforded it little weight" noting that although his "specialty is neurology, his opinion is inconsistent with the objective medical evidence." Tr. 25. The ALJ found the following:
Despite some stable abnormalities on the claimant's brain scan over a period of several years, the claimant's neurological assessments appeared normal throughout the longitudinal record (e.g., Ex. 5F/5, 7; Ex. 17F/73; Ex. 27F/35, 39). Additionally, Dr. Besliu's opinion appears based on the claimant's subjective reports that she experienced approximately two migraines per week with regular Botox treatment, rather than her later reports that she continued to experience migraines about 15 days per month despite Botox injections (Ex. 29F/22, 25; Ex. 36F/13). His opinion does not appear to take into account the claimant's reports that she experienced some symptom relief with abortive medication or note whether the claimant
experienced improvement after he increased the dose of that medication and prescribed a new preventive medication (Ex. 29F/22, 25; Ex. 36F/7). Additionally, his opinion appears inconsistent with the claimant's report to physical therapists that month that she experienced slight, infrequent headaches (Ex. 42F/8).Id.
Plaintiff contends the ALJ's findings were unreasonable because based on the evidence of record, Plaintiff's responsiveness to various medications varied in their ability to consistently relieve Plaintiff's symptoms. Pl.'s Br. 23. Citing to Totten v. Califano, 624 F.2d 10 (4th Cir. 1980), Plaintiff asserts that the ALJ failed to consider the question of whether her "intermittent incapacity constitutes an inability to perform any substantial gainful activity." Id. Plaintiff argues that the frequency and severity of her pain fluctuated and the ALJ "failed to 'build an accurate and logical bridge from the evidence to his conclusion.'" Pl.'s Br. 24 (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). Pointing to the inconsistencies cited by the ALJ, the Commissioner contends that "more than a mere scintilla of evidence supports the ALJ's giving Dr. Besliu's assessment little weight." Def.'s Br. 11-13. On reply Plaintiff argues that "the ALJ's findings were essentially internally inconsistent" and the Commissioner engaged in improper post hoc rationale. Pl.'s Response Br. 2-4, ECF No. 20.
While an ALJ is under no obligation to accept any medical opinion, she must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). "'[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ 'give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity." Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015). "When, as here, an ALJ denies a claimant's application, the ALJ must state 'specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision." Sharp v. Colvin, 660 F. App'x 251, 257 (4th Cir. 2016) (emphasis added). In Sharp, the Fourth Circuit determined that the "ALJ did not summarily conclude that [the doctor's] opinion merited little weight" because the ALJ explained why she discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id.
Here, as required by SSR 96-2p, the ALJ's decision contained specific reasons for the weight given to Dr. Besliu's opinion; however, the undersigned is unable to "identify clearly" the ALJ's reasoning. As an initial matter, Dr. Besliu's August 2017 opinion addressed only Plaintiff's chronic headaches. Tr. 1710. The ALJ cites to three records—a neurology follow-up on October 9, 2014; a March 17, 2016 cranial CT scan; and an October 28, 2015 brain MRI—to show that despite some stable abnormalities in Plaintiff's brain scans her neurological assessments appeared normal. Tr. 25 (citing Ex.5F/5,7; Ex. 17F/73; Ex. 27F/35, 39). None of these records, however, indicate that Plaintiff was migraine-free. In fact, each record indicates a history of chronic migraine headaches. Tr. 462, 821, 1269. Next, the ALJ states that Dr. Besliu's opinion appears to be based on Plaintiff's subjective report that she was having two migraines a week with Botox treatment instead of "later reports that she continued to experience migraines about 15 days per month despite Botox injections." Tr. 25. Whether Plaintiff experienced migraines twice a week or 15 days a month is not inconsistent with Dr. Besliu's opinion that Plaintiff would be absent from work 8-10 days per month due to chronic headaches. The opinion does not state how many migraines Plaintiff would experience in one month. The ALJ also states that Dr. Besliu's opinion "does not appear to take into account" Plaintiff's reports of experiencing some symptom relief with medications. However, that was not a question that was asked of Dr. Besliu, so it is impossible to tell whether that was a consideration of his in formulating his opinion. Finally, the ALJ posits that Dr. Besliu's opinion is inconsistent with a physical therapy report that Plaintiff experienced slight, infrequent headaches. Tr. 25. The undersigned notes in an August 2, 2017 Progress Note Dr. Besliu noted that Plaintiff "continues having frequent headaches, which remained refractory to a multitude of preventative treatments including chemodenervation." Tr. 1672. Dr. Besliu referred Plaintiff to physical therapy for her chronic migraine headaches. Id. The record cited by the ALJ is a "Neck Disability Index Questionnaire" from ATI Physical Therapy dated August 15, 2017. Tr. 1734-35. The Questionnaire addresses the ten categories of Pain Intensity, Personal Care, Lifting, Reading, Headaches, Concentration, Work, Driving, Sleeping, and Recreation. Id. As noted by the ALJ, in the Headache category, the box that is checked is: "I have slight headaches, which come infrequently." Tr. 1734. The physical therapy records indicate that on her third visit Plaintiff reported feeling worse, Tr. 1729, and by her fifth visit on August 29, 2017, Plaintiff reported that her headache pain was worse, Tr. 1727. Plaintiff was discharged from physical therapy on September 5, 2017 "due to lack of progress." Tr. 1737. It is unclear whether Dr. Besliu was privy to the physical therapy records at the time he formulated his opinion. In any event, despite Plaintiff's initial response to the Neck Disability questionnaire, Dr. Besliu's opinion is not inconsistent with the final outcome of Plaintiff's attempt at physical therapy.
Having reviewed the record evidence, the undersigned finds that remand for further consideration of Dr. Besliu's opinion is appropriate. In making this recommendation, the undersigned is mindful that the court is not to weigh evidence or substitute its judgment for that of the Commissioner but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays v. Sullivan, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied); DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) ("Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator."); Arnold v. Sec'y of H.E.W., 567 F.2d 258, 259 (4th Cir. 1977) (noting that, unless Commissioner "has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.") (internal quotation omitted).
The undersigned cannot find the Commissioner's decision is based on substantial evidence because the ALJ has not explained adequately the contradictions or inconsistencies she cited regarding Dr. Besliu's opinion given the limited nature of his opinion. Remand for further consideration of Dr. Besliu's opinion is recommended.
Additionally, Plaintiff moved for remand based on "new and material evidence" submitted to the Appeals Council in the form of a two-page letter from Dr. Besliu dated March 8, 2018. Pl.'s Br. 25. The Appeals Council did not exhibit this evidence, finding that it did not show "a reasonable probability that it would change the outcome of the decision." Tr. 2. Because the undersigned recommends remand for review of Dr. Besliu's 2017 opinion, the additional evidence may raise a question as to whether the ALJ's decision regarding that opinion is supported by substantial evidence. Accordingly, the case should also be remanded so that the ALJ can consider the evidence submitted by Plaintiff. 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 undersigned cannot determine that the Commissioner's finding is supported by substantial evidence or is without legal error.
Accordingly, 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, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action as detailed within.
IT IS SO RECOMMENDED. April 7, 2020
Florence, South Carolina
Kaymani D. West
United States Magistrate Judge