Opinion
C/A 1:20-cv-2414-SAL-SVH
04-07-2021
Angela P., [1] Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges Columbia, South Carolina 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”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he 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 October 13, 2016, Plaintiff filed an application for DIB in which she alleged her disability began on March 12, 2016. Tr. at 89, 196-97. Her application was denied initially and upon reconsideration. Tr. at 91-94, 99- 104. On March 7, 2019, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Jerry Peace. Tr. at 33-62 (Hr'g Tr.). The ALJ issued an unfavorable decision on April 26, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 15-32. 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 4-9. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 25, 2020. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 54 years old at the time of the hearing. Tr. at 39. She completed high school. Tr. at 40. Her past relevant work (“PRW”) was as a coater and a rubber chemical mixer. Tr. at 57. She alleges she has been unable to work since March 12, 2016. Tr. at 196.
2. Medical History
Plaintiff sustained an injury to both knees in 2009. Tr. at 636. She failed to improve with steroid injections and physical therapy and ultimately required left knee arthroscopy with debridement of the lateral meniscus and right knee arthroscopy with debridement of the lateral meniscus and chrondroplasty of the patella. Id. Plaintiff returned to work in December 2010 following physical therapy and a home exercise program. Tr. at 637. She received Supartz injections in March 2011, and the record documents no further problems with her knees between 2011 and 2014. Id.
Plaintiff sustained a work-related injury to her bilateral knees, groin, and right ankle on September 22, 2014, when a tab from her safety shoes caught on a step and caused her to fall forward onto her outstretched hands, with direct impact to her bilateral knees and groin and twisting of her right ankle. Tr. at 636. She was placed on modified work duty to include no repetitive bending, squatting, kneeling, or stooping. Id.
On July 17, 2015, magnetic resonance imaging (“MRI”) of Plaintiff's right knee showed: (1) a horizontal tear in the posterior horn/body junction of the lateral meniscus; (2) increased signal in the posterior horn of the medial meniscus that might reflect a subtle meniscal tear; (3) a trace amount of fluid in the knee joint with thin medial patellar plica; (4) myxoid changes in the acromioclavicular ligament (“ACL”) without disruption; (5) mild lateral patella subluxation; and (6) moderate-to-severe cartilage thinning in the trochlea and moderate cartilage thinning along the lateral femoral condyle with superficial cartilage fibrillation along the patella. Tr. at 542-43. An MRI of Plaintiff's left knee showed: (1) blunting along the free edge of the body of the lateral meniscus that likely reflected a previous partial meniscectomy, but no retear; (2) increased signal in the medial meniscus without a tear; (3) mild scarring in Hoffa's fat pat from previous arthroscopy; (4) a trace amount of fluid in the knee joint with thin medial patellar plica; (5) mild cartilage thinning along the lateral femoral condyle and patella; and (6) a low-grade cartilage lesion in the proximal tibia. Tr. at 544-45.
Plaintiff presented to Henry F. Butehorn, III, M.D. (“Dr. Butehorn”), for evaluation of neck pain and a knot on her neck on February 19, 2016. Tr. at 267. She described the knot as firm and noted it had been present for years and was not tender to touch, but had increased in size over the prior year. Id. She also endorsed neck pain. Id. Dr. Butehorn observed a mass on the left side of Plaintiff's neck that was posterior to the sternomastoid muscle. Tr. at 268. He assessed a left neck mass and ordered an ultrasound of the neck and thyroid and a possible needle biopsy. Id.
Plaintiff followed up with Dr. Butehorn on March 1, 2016. Tr. at 270. She complained that the mass on her neck was becoming more noticeable and requested that it be removed and tested. Id. Dr. Butehorn explained that the ultrasound had revealed two small clinically-stable nodules on her right thyroid and a left neck mass that had increased in size by 33% since a prior ultrasound was performed on April 9, 2013. Tr. at 271. He assessed a nontoxic multinodular goiter and a mass, lump, and localized swelling to the left neck. Id. Plaintiff requested to proceed with surgery, and Dr. Butehorn indicated it would be scheduled. Id.
Plaintiff presented to orthopedist Stephen Kana, M.D. (“Dr. Kana”), for evaluation of peroneal tendonitis and plantar fasciitis on March 3, 2016. Tr. at 320. She complained that she felt miserable after having worked for seven days in a row. Id. She indicated Duexis, which had been prescribed at a prior visit, was ineffective. Id. She stated she had difficulty walking and could not tolerate her pain. Id. Dr. Kana observed a tremendous amount of swelling along the course of the peroneal tendon. Tr. at 321. He also noted tenderness and subluxation through range of motion (“ROM”) of the foot. Id. He assessed peroneal tendinitis of the right foot and plantar fascial fibromatosis. Id. He removed Plaintiff from work for two weeks and prescribed a walking boot. Id.
Plaintiff reported little improvement with use of the boot and Duexis on March 18, 2016. Tr. at 318. She endorsed pain upon walking with or without the boot, as well as difficulty ascending and descending stairs and walking on her toes. Id. Dr. Kana noted tenderness and swelling along the course of the peroneal tendon. Tr. at 319. He also observed some mild subluxation of the tendon as he moved Plaintiff through ROM exercises. Id. He discussed treatment options, and Plaintiff opted to proceed with surgery. Id.
On March 23, 2016, Dr. Butehorn surgically excised the tumor from the left side of Plaintiff's neck. Tr. at 276.
On March 28, 2016, Dr. Kana performed exploration of the peroneal tendon sheath, deepening of the groove underneath the lateral malleolus, and reconstruction of the perineal tendon sheath. Tr. at 322-23. He placed Plaintiff in a splint. Tr. at 323.
Plaintiff presented to Dr. Butehorn for postoperative follow up on March 30, 2016. Tr. at 277-78. He removed Plaintiff's sutures and noted edema in the area. Tr. at 278. He prescribed Norco and instructed Plaintiff to clean the area with soap and water. Tr. at 277, 278.
Plaintiff followed up with Dr. Kana on April 5, 2016. Tr. at 317. She endorsed some improvement with moderate post-operative pain. Id. Her ankle was immobilized with a splint and she was ambulating with crutches. Id. Dr. Kana observed Plaintiff's surgical incision to be healing normally. Id. He applied a below-knee walking cast and instructed Plaintiff to bear weight to tolerance. Id.
On April 18, 2016, Plaintiff reported decreased pain and noted she had been reluctant to walk on her right foot. Tr. at 315. She was anxious to get out of the cast and begin bearing weight. Id. Dr. Kana observed a well-healed incision to Plaintiff's right ankle. Tr. at 316. He placed Plaintiff in a boot, prescribed Norco 7.5/325 mg, and referred her to physical therapy. Id.
Plaintiff participated in physical therapy at Advanced Therapy Solutions between April 25 and July 28, 2016. Tr. at 325-36, 384-454, 462- 63.
Plaintiff complained of hoarseness, excessive fatigue, feeling cold, and joint swelling, pain, and stiffness upon follow up with Dr. Butehorn on April 27, 2016. Tr. at 279. She described numbness near her left ear. Id. Dr. Butehorn observed Plaintiff to be healing normally and indicated he expected her to continue to improve. Tr. at 280.
On May 10, 2016, Plaintiff reported improved swelling and indicated her pain was nearly gone. Tr. at 313. She requested that the boot be removed so that she could proceed with therapy. Id. Dr. Kana noted minimal swelling, good ROM, normal sensation in the lower extremity dermatomes, and good dorsalis pedis and posterior tibial pulses. Tr. at 314. He indicated Plaintiff should wean from the boot and proceed with physical therapy. Id.
Plaintiff also presented to Walter D. Kucaba, D.O. (“Dr. Kucaba”), for an annual physical on May 10, 2016. Tr. at 292-95. She had gained eight pounds since her last visit in July 2015 and her blood pressure was elevated at 146/77 mmHg. Tr. at 293. Dr. Kucaba instructed Plaintiff to continue physical therapy as directed and discussed diet, physical fitness, and preventive medicine. Id.
Plaintiff reported doing well overall and denied popping from the subluxing tendon on June 8, 2016. Tr. at 312. She endorsed a little bit more pain than usual in the peroneal muscle and indicated she felt as if she were straining it with certain activities. Id. Dr. Kana noted well-healed incisions, but a little bit of tenderness laterally over the peroneal muscle group. Id. He indicated there was no subluxing or dislocating of the tendon on ROM testing. Id. He advised Plaintiff to continue rehabilitation and to return in a month. Id.
Plaintiff admitted to doing well and described having engaged in intensive physical therapy exercises on July 12, 2016. Tr. at 310. She endorsed increased pain with quick movements such as pivoting and noted a slight flare-up of plantar fasciitis. Id. She indicated stretches and using ice bottles seemed to help the plantar fasciitis. Id. She requested a cortisone injection. Id. Dr. Kana noted Plaintiff's incision was well-healed and she was neurovascularly intact, had a little tenderness in her peroneal muscle, and had no popping through ROM exercises. Tr. at 311. On examination of the right knee, he observed 1+ joint effusion, positive patella grind test, crepitus with ROM, and tenderness along the medial joint line that was reproduced by flexion and McMurray's maneuver. Id. He assessed strain of muscles and tendon of the peroneal muscle group at the lower leg level and derangement of the posterior horn of the medial meniscus due to an old tear or injury of the right knee. Id. He administered a cortisone injection to Plaintiff's right knee. Id.
Physical therapist Heather K. Brown (“PT Brown”), discharged Plaintiff on July 28, 2015, as Plaintiff reported she would be losing insurance coverage effective August 1 and could not afford to self-pay. Tr. at 462-63. PT Brown noted Plaintiff had limited ability to perform lifting and carrying activities and experienced increased pain with increased activity. Tr. at 462. She stated Plaintiff would be transitioning into a maintenance program or continuing with a home exercise program daily. Id.
Dr. Kana completed a capacity questionnaire for Prudential Group Disability Insurance on August 5, 2016. Tr. at 365-66. He denied that Plaintiff had full- or part-time work capacity. Tr. at 365. He indicated that Plaintiff did not have work capacity for standing and walking continuously up to eight hours or for sitting continuously up to eight hours. Id. However, he estimated that Plaintiff would be capable of a return to full-time work on approximately August 22, 2016. Id. He stated Plaintiff could never climb stairs or ladders, balance, work at heights, stoop, kneel, crawl, reach overhead, or lift/carry up to or greater than 10 pounds. Id. He indicated Plaintiff could occasionally reach at desk level and perform bilateral handling and fingering. Id. He stated Plaintiff could perform no long-term standing, squatting, climbing, or crawling. Tr. at 366.
On August 12, 2016, Plaintiff endorsed some improvement in her foot pain and indicated the exercises seemed helpful. Tr. at 377. She noted she was taking ibuprofen twice a day. Id. She stated the cortisone injection to her knee had provided a week of relief. Id. She complained of difficulty walking, getting up from chairs, and going up and down stairs. Id. Dr. Kana observed no obvious deformity to Plaintiff's right knee and 1+ joint effusion. Tr. at 379. He recorded ROM from zero to 115 degrees, crepitus, positive patella grind test, and tenderness along the lateral joint line that was reproduced by flexion and McMurray's maneuver. Id. He noted moderate swelling in Plaintiff's right ankle. Id. He assessed derangement of the posterior horn of the lateral meniscus, due to an old tear or injury of the right knee. Id. Plaintiff expressed a desire to proceed with surgery. Id.
Dr. Kana completed a second capacity questionnaire on August 19, 2016, detailed below. Tr. at 370-71.
Plaintiff presented to physician assistant Jefferson Rabe (“PA Rabe”), on December 2, 2016. Tr. at 338. She complained of swelling and pain in her right ankle and difficulty with prolonged standing. Id. She indicated the cortisone injection she received during her last visit had provided approximately a week of relief. Id. She described difficulty walking, rising from a chair, and going up and down stairs. Id. PA Rabe noted no obvious deformity in Plaintiff's right knee, but 1+ joint effusion, ROM from zero to 115 degrees, crepitus, positive patella grind test, and tenderness along the lateral joint line that was reproduced with flexion and McMurray's maneuver. Tr. at 339. He also observed moderate swelling in Plaintiff's right ankle with good ROM and good strength in her peroneal tendon. Id. He advised Plaintiff of treatment options, but she could not afford to proceed with injections or other procedures. Id. PA Rabe indicated he would try Plaintiff on nonsteroidal anti-inflammatory drugs (“NSAIDs”) and a topical anti-inflammatory cream and that she should follow up as needed. Id.
On March 23, 2017, state agency medical consultant Irene Richardson, M.D. (“Dr. Richardson”), reviewed the record and assessed Plaintiff's physical residual functional capacity (“RFC”). Tr. at 68-70.
Plaintiff followed up with Dr. Kucaba on May 2, 2017. Tr. at 590-93. Her blood pressure was elevated at 144/90 mmHg. Tr. at 590. She endorsed a history of right medial elbow pain that was controlled. Tr. at 591. Dr. Kucaba recorded 5/5 musculoskeletal strength, full ROM in all extremities, and no lower extremity edema. Id. He assessed hypocholesterolemia, weight gain, and anxiety. Tr. at 592-93. He prescribed Trazodone and referred Plaintiff to vocational rehabilitation. Tr. at 593.
On May 22, 2017, a second state agency medical consultant, Thomas O. Thomson, M.D. (“Dr. Thomson”), reviewed the record and provided the same physical RFC assessment as Dr. Richardson. Compare Tr. at 68-70, with Tr. at 84-85.
Plaintiff presented to St. Luke's Free Medical Clinic (“St. Luke's”) to establish care on November 8, 2017. Tr. at 620. She complained of numbness and swelling in her bilateral feet and ankles and her right knee and noted she occasionally used ibuprofen. Id. Nurse Practitioner Georgina Ravan (“NP Ravan”) noted bilateral ankle edema and tenderness. Id. She assessed joint pain, right meniscus tear, carpal tunnel syndrome, and a history of anxiety and depression. Id.
Plaintiff attended a physical therapy assessment on November 28, 2017. Tr. at 629-30. Physical therapist Ivan Curry (“PT Curry”) recommended physical therapy twice a week for six to eight weeks. Tr. at 630.
Plaintiff returned to St. Luke's with sinus problems and a headache on January 11, 2018. Tr. at 619. She endorsed pain in her bilateral knees and back. Id. NP Ravan noted no joint inflammation or swelling, but some tenderness in the lower back and abnormalities in the lateral meniscus of the knee. Id. She assessed chronic knee and back pain and sinus pressure without infection and instructed Plaintiff to take over-the-counter sinus medication. Id.
X-rays of Plaintiff's bilateral knees were unremarkable on February 19, 2018. Tr. at 633. X-rays of her lumbar spine were also negative. Tr. at 634.
On April 26, 2018, Plaintiff endorsed cramps in her right foot and leg, upon standing for too long. Tr. at 618. She described pain in her lower back and what felt like knots in her feet. Id. She indicated that Celebrex helped with inflammation. Id. Nurse Practitioner Tamika Murphy (“NP Murphy”) assessed right knee and chronic back pain and ordered an MRI of Plaintiff's right knee. Id.
On May 14, 2018, the MRI of Plaintiff's right knee showed: (1) truncation along the free margin of the body of the lateral meniscus most in keeping with prior partial lateral meniscectomy and no strong findings to indicate recurrent meniscal tear; (2) slight lateral patellar tilt with suspected patellofemoral impingement and no focal chondral defect; and (3) trace joint effusion. Tr. at 631.
Plaintiff presented to orthopedic surgeon William L. Lehman, Jr., M.D. (“Dr. Lehman”), for an independent medical evaluation related to her worker's compensation claim on May 14, 2018. Tr. at 635-43. On examination of the lumbar spine, Dr. Lehman noted normal lordosis, no tenderness to palpation along the paraspinals or sacroiliac joints, and no obvious deformity or scoliosis. Tr. at 640. He found normal mobility and stability to the joints of the upper extremities. Id. He observed 1+ effusion of the right knee, positive femoral grind test, limited ROM from zero to 100 degrees, a hypermobile patella without apprehension, and positive McMurray's test with external rotation. Id. He noted ROM of the left knee from zero to 120 degrees, no effusion, no patellofemoral pain or subluxation, and positive McMurray's test in both internal and external rotation. Id. He stated Plaintiff demonstrated diffuse swelling about the hindfoot and limited dorsiflexion to zero degrees consistent with Achilles tendon contracture. Id. He indicated Plaintiff had normal subtalar motion that was associated with pain. Id. He stated there was generally no clubbing, cyanosis, or edema of either leg. Id. He recorded no neurological changes. Id.
Dr. Lehman wrote:
[Plaintiff's] current situation remains debilitating. She has been unable to find an alternative job since being terminated from [her former employer]. The right ankle is doing relatively well, other than some occasional tightness and numbness at the toes with cramping. This causes some difficulty with climbing and walking. In terms of the right knee, there is persistent pain, popping, swelling and severe soreness. [Plaintiff] notes symptoms of instability, such as her knee will “pop out.”Id. He further noted that Plaintiff reported improvement in swelling with use of 400 mg of Celebrex daily. Id. He stated Plaintiff reported similar symptoms in her left knee, endorsing “popping and swelling with prolonged walking.” Id. He further referenced Plaintiff's report of intermittent difficulty getting out of bed because of pain in both knees with initial weightbearing. Id. He noted her complaint of difficulty sleeping due to being awakened with knee pain two or three times during the night. Id. He stated Plaintiff's walking capacity was a maximum of 200 feet at a time and her standing maximum was 30 to 45 minutes. Tr. at 641. He noted she had a limp and was unable to stoop, squat, or climb. Id.
Dr. Lehman's diagnostic impressions were: (1) persistent right knee pain, effusion, and synovitis, with definite evidence of progressive post-traumatic chondromalacia and medial meniscus tear, consistent with symptoms, most probably related to the work injury; (2) persistent pain and swelling of the left knee with a newly-identified tear to the posterior horn meniscus, consistent with injury; (3) right ankle peroneal tendon subluxation, status post-reconstruction, doing reasonably well other than Achilles tendon contracture and swelling and possible residual plantar fasciitis; and (4) improved thoracic and cervical strain. Tr. at 641. He noted Plaintiff continued to experience debilitating symptoms at the right greater than left knee. Id. He stated Plaintiff's activities of daily living (“ADLs”) and work capacity remained considerably impaired by her bilateral knee conditions. Tr. at 642. He stated Plaintiff's level of disability could be significantly lessened through bilateral arthroscopy. Id.
Plaintiff complained of headaches during a visit to St. Luke's on June 5, 2018. Tr. at 646. She described a sharp pain in her neck that presented with headaches and tended to linger. Id. She endorsed a history of migraines that had been worse over the prior two weeks. Id. The physician observed Plaintiff's neck to be very tender along the right paracervical muscles. Id. He assessed a tension headache. Id.
On December 6, 2018, Plaintiff returned to St. Luke's with a migraine that had lasted two days. Tr. at 649. She indicated she had received Flexeril at her last visit that had been helpful and requested a refill. Id. She also endorsed right knee pain. Id. Physician Assistant Andrew Donnan (“PA Donnan”) refilled Plaintiff's prescription for Celebrex and ordered physical therapy. Id. Plaintiff informed PA Donnan that she had been approved for Medicaid and would no longer be following up with St. Luke's. Id.
Plaintiff visited the emergency room at Spartanburg Regional Healthcare System for right-sided back pain on December 21, 2018. Tr. at 666-69. She indicated the pain had been present for over a month and had not improved with Flexeril. Id. She described sharp pain that was exacerbated by movement and endorsed intermittent headaches and nausea. Id. Her blood pressure was elevated at 152/97 mmHg. Tr. at 667. Steven Alexander Kornweiss, M.D., noted that Plaintiff had reproducible midthoracic tenderness on the right side, but no midline or costovertebral angle tenderness, 5/5 strength in the bilateral lower extremities, intact sensation, no edema, and full ROM of the extremities. Tr. at 668. He assessed musculoskeletal back pain and provided a Lidoderm patch. Tr. at 668, 670.
Plaintiff again participated in physical therapy in January 2019. Tr. at 671-77, 690-720. He presented to physical therapist Caitlin Butts (“PT Butts”) for an initial assessment on January 2, 2019. Tr. at 670-77. PT Butts observed Plaintiff to have guarding over the right thoracic paraspinals and bilateral lumbar paraspinals on palpation; an antalgic gait favoring the right lower extremity; limited endurance with standing and walking; lumbar lordosis; trunk flexion 25% limited due to pain; trunk extension 50% limited due to pain; bilateral side bending 25% limited due to pain; bilateral rotation 50% limited due to pain; 3+/5 bilateral hip flexion, extension, abduction, and adduction; 4-/5 bilateral knee flexion and extension; 4-/5 right ankle dorsiflexion; 4/5 left ankle dorsiflexion; 4/5 bilateral ankle plantar flexion; negative bilateral straight-leg raising (“SLR”) test; decreased bilateral hamstring length; lumbar hypomobility; normal sensation in the bilateral lower extremities; fair standing balance; and an Oswetry Disability Index (“ODI”) score of 62%. Tr. at 672-74. She noted Plaintiff had limited lumbar mobility and decreased core/lower extremity strength. Tr. at 670. She stated Plaintiff's long-term goals were to: (1) have a disability score of less than or equal to 40% on the ODI to be able to return to prior functional activities; (2) demonstrate 4/5 gross hip strength to be able to lift greater than 15 pounds; and (3) improve lumbar mobility in order to be able to perform repetitive bending. Id. She recommended Plaintiff attend sessions twice a week for eight weeks. Tr. at 671.
Plaintiff presented to John Branham Tomarchio, M.D. (“Dr. Tomarchio”) for a consultative exam on January 29, 2019. Tr. at 659-61. She complained of chronic lower back pain over the prior three to four years, following an on-the-job injury. Tr. at 659. She described non-radiating, knifelike pain that occurred intermittently in the center of her thoracic spine. Id. She also endorsed pain in her right ankle and bilateral knees. Id. Plaintiff reported abilities to dress and feed herself, stand for 30 to 45 minutes at a time, walk a quarter of a mile on level ground, sit for 30 to 40 minutes at a time, lift 10 pounds, drive, sweep, cook, do dishes, and shop. Tr. at 660. Dr. Tomarchio observed Plaintiff to ambulate with a slight limp. Id. He noted 2+ pulses in Plaintiff's extremities with no evidence of edema, cyanosis, or clubbing and no swelling, redness, or effusion of the joints. Tr. at 661. He indicated normal findings on neurological testing. Id. He stated Plaintiff was obese. Id. He recorded normal findings on ROM and SLR tests. Tr. at 651. He noted normal findings as to Plaintiff's bilateral hands and no Phalen's or Tinel's signs. Tr. at 652. He indicated Plaintiff had abnormal abilities to perform squatting and tandem walking because of obesity and bilateral knee pain. Id. He considered Plaintiff's upper and lower extremity strength to be within normal limits. Id. He opined that Plaintiff “may have some difficulty with standing for prolonged periods or walking long distances, ” but appeared to be able to sit without difficulty. Tr. at 661. He stated Plaintiff had normal fine and gross manipulative skills and could communicate without difficulty. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified that she lived in a house with her father and 15-year-old grandson. Tr. at 39. She stated she was 5'6” tall and weighed 238 pounds. Id. She admitted she had a driver's license and was able to drive. Tr. at 40. She said she had received worker's compensation benefits due to her foot surgery. Tr. at 41.
Plaintiff denied working at the time of the hearing and said she last worked as a fabric coater for about five years prior to having sustained an injury while working. Tr. at 41-42. She indicated she had applied for other jobs after leaving, but received no call backs. Tr. at 42. She stated she last applied for work in December 2018. Id.
Plaintiff testified that she had previously worked as a fabric cutter, operating a machine. Id. She indicated she had worked for a tire manufacturer for 15 years, mixing chemicals for the product. Tr. at 42-43.
Plaintiff stated she was unable to work because of problems with her feet and knees. Tr. at 43. She described her feet as burning and piercing and indicated they would swell. Id. She said she sometimes had cramps in her feet that caused difficulty walking. Id. She indicated the cramps lasted for two to three minutes at a time. Id. She also said she had problems with her back, neck, and right hand. Id. She estimated she could stand for 10 to 15 minutes before requiring a break and sit for 20 to 30 minutes before needing to get up and move around. Tr. at 43-44. She indicated she could walk for less than five minutes before needing a break. Tr. at 44. She noted she could lift about 10 pounds and denied using a cane or walker. Id. She stated she was able to bend with some difficulty. Tr. at 44-45.
Plaintiff testified her right knee was more problematic than her left. Tr. at 45. She stated both knees hurt, but the right knee swelled more often. Id. She denied pain in her shoulders, but said she had pain in her neck and hands. Id. She said she had allergies and sometimes found it a little hard to breathe, but denied having asthma, chronic obstructive pulmonary disease, or emphysema. Id.
Plaintiff testified that she used a chair and was up and down while preparing meals. Tr. at 46. She stated she was generally able to bathe and dress on her own, but sometimes required her father's assistance to lift her feet over the bathtub. Id. She denied doing yardwork, gardening, and laundry. Id. She said she swept a little at a time. Id. She stated she either used a motorized cart to shop for groceries or her daughters would pick up items she needed. Tr. at 47. She indicated her family members typically came to visit her instead of her going to visit them. Id. She admitted she had a cell phone that could access the internet, but denied using the internet. Id. She said she had not used Facebook since she stopped working. Id. She stated she attended church and rarely went out to eat. Id. She denied having recently visited a doctor for her feet, knees, back, and hands because she was unable to continue treatment at the free clinic after being approved for Medicaid. Tr. at 48. She said she was attending physical therapy for her back. Id. She denied taking medication, as she could not afford to fill her prescriptions and Medicaid did not cover them. Tr. at 48-49.
Plaintiff testified that she spent most days in her house, moving about and straightening up. Id. She indicated she rarely went anywhere, aside from church and church activities. Id. She said she spent most of her time icing her feet and lying down. Id.
In response to her attorney's questions, Plaintiff described having fallen on a platform at work. Tr. at 50. She stated she was initially checked out, received medication, and continued to work. Id. She said she subsequently visited Dr. Kana on her own, as she was not improving. Id. She indicated Dr. Kana provided injections and informed her that she had plantar fasciitis. Id. She stated she continued to treat with Dr. Kana, who eventually referred her for MRIs of her knees and feet. Id. She said the MRI of her feet showed a torn tendon that required surgery. Id.
Plaintiff stated she participated in physical therapy following her surgery. Id. She said she walked slowly and with a limp. Tr. at 51. She indicated she would ice and elevate her right knee and sometimes lie down to reduce swelling. Id. She said she would typically lie down two or three times during the day for 20 to 30 minutes. Id.
Plaintiff stated her grandson often assisted her, doing the laundry, washing dishes, taking out the trash, mopping the floor, and lifting items as needed. Id. She indicated her father cut the grass, noting he seemed to be in better health than she. Tr. at 52.
Plaintiff testified that using the car's pedals to brake and accelerate exacerbated her foot pain. Id. She indicated she had been diagnosed with bilateral carpal tunnel syndrome and had previously undergone surgery to her right hand. Tr. at 52-53. She denied having received treatment for her left hand. Tr. at 53. She stated her right hand continued to bother her, having swelled up that day. Id. She indicated problems with her hands would affect her ability to perform a seated job and that she would need the ability to elevate her foot and knee if she had a job with a sit-stand option. Id.
Plaintiff stated she suffered from migraine headaches that lasted for a day-and-a-half at a time and sometimes caused vomiting. Id. She indicated they occurred an average of three times a month. Tr. at 54. She said she would lie in bed with no lights or noise when she experienced a migraine. Id. She denied being able to work while experiencing migraines. Id. She described throbbing pain through the base of her head and on the right side of her neck. Tr. at 55.
Plaintiff testified that she enjoyed her work when she was working. Id. She said she missed work. Id. She stated she did not believe there was any work that she could really do because of her limitations. Id.
During his examination of the VE, the ALJ asked Plaintiff for clarification as to the maximum weight lifted, as she had described the job of coater as requiring lifting 50 pounds occasionally and elsewhere as requiring lifting 40 pounds frequently. Tr. at 58-59. Plaintiff testified she used a hoist, but that some of the drums she had to push weighed 200 and 300 pounds. Tr. at 59.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Allison A. Shipp, Ph.D., reviewed the record and testified at the hearing. Tr. at 56-61. The VE categorized Plaintiff's PRW as a coater, Dictionary of Occupational Titles (“DOT”) number 584.682-010, as requiring medium exertion with a specific vocational preparation (“SVP”) of four, and a rubber chemical mixer, DOT number 550.685-026, as requiring heavy exertion with an SVP of three. Tr. at 57. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift and carry up to 20 pounds occasionally and up to 10 pounds frequently; stand and/or walk for approximately six hours in an eight-hour workday; never climb ladders, ropes, or scaffolds; and occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs. Id. He asked if the individual could perform Plaintiff's PRW as she performed it or as it was customarily performed. Id. The VE testified that the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs in the economy that the hypothetical person could perform. Id. The VE identified light jobs with an SVP of 2 as a small parts assembler, DOT number 706.684-022, a cashier II, DOT number 211.462-010, and a fast foods worker, DOT number 311.472-010, with 196, 000, 1, 276, 000, and 1, 733, 000 positions in the national economy, respectively. Tr. at 57-58.
The ALJ next described a hypothetical individual of Plaintiff's vocational profile who could lift up to 50 pounds occasionally and lift and carry up to 25 pounds frequently, consistent with medium work as defined in the regulations; never climb ladders, ropes, or scaffolds; occasionally kneel, crawl, and climb ramps or stairs; frequently balance, stoop, and crouch; occasionally be exposed to extreme cold and excessive vibration; occasionally use moving machinery; and never be exposed to unprotected heights. Tr. at 58. He asked if the individual would be able to perform Plaintiff's PRW as she performed it or as it was customarily performed. Id. The VE testified that Plaintiff could perform her PRW as a coater both as she performed it and as it was customarily performed. Id. After having received clarification from Plaintiff as to the maximum weight she lifted, the VE noted that her work as a coater was likely performed at the medium exertional level and confirmed that the individual described in the hypothetical question could perform the job as customarily performed and as she performed it. Tr. at 59.
For a third hypothetical question, the ALJ described an individual of Plaintiff's vocational profile who was limited as described in the first question, would be off-task for 20% or more of the workday, and would be absent from work three or more days per month. Tr. at 60. He asked if the individual would be able to perform Plaintiff's PRW. Id. The VE stated she would not. Id. The ALJ asked if there would be any other jobs available. Id. The VE testified that there would be no jobs. Id.
The ALJ asked the VE if there were any apparent or other conflicts between her testimony and the DOT's descriptions of the jobs she identified. Id. The VE stated there were no conflicts. Id.
Plaintiff's attorney asked the VE if an employer would accommodate an individual who was required to elevate her feet above waist-level while working. Tr. at 61. The VE stated the accommodation would be considered work-preclusive in a competitive workforce. Id.
2. The ALJ's Findings
In his 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, 2021.
2. The claimant has not engaged in substantial gainful activity since March 12, 2016, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: dysfunction of major joints (ankle and knee); disorder of the muscle, ligament, and fascia; and obesity (20 CFR 404.1520(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, and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except she can never climb ladders, ropes, or scaffolds; can occasionally kneel and crawl; is limited to occasional exposure to extreme cold and vibration; can occasionally use moving machinery; and can have no exposure to unprotected heights.
6. The claimant is capable of performing past relevant work as a coater and a rubber chemical mixer. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from March 12, 2016, through the date of this decision (20 CFR 404.1520(f)).Tr. at 20-26.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ improperly rejected medical opinions as to work-preclusive limitations;
2) the ALJ failed to consider Plaintiff's headaches as severe and did not address the limitations they imposed in determining her RFC; and
3) the ALJ failed to properly evaluate the demands of Plaintiff's PRW
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. 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) (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, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(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; Sullivan v. Zebley, 493 U.S. 521, 530 (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).
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).
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); 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 Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in 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 genera ly 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 his 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. Medical Opinions
The record contains opinions from Plaintiff's treating orthopedist Dr. Kana, independent examining orthopedic surgeon Dr. Lehman, consultative examiner Dr. Tomarchio, and the two non-examining state agency consultants, Drs. Richardson and Thomson.
In a capacity questionnaire dated August 19, 2016, Dr. Kana stated Plaintiff had the capacity to return to full-time work, eight hours a day and five days a week beginning August 15, 2016. Tr. at 370. He indicated Plaintiff was incapable of work that required standing and walking continuously for up to eight hours, but could sit continuously for up to eight hours. Id. He stated Plaintiff should never climb stairs or ladders, balance, work at heights, stoop, kneel, crawl, or lift or carry up to or greater than 20 pounds. Id. He noted Plaintiff could occasionally lift and carry up to 10 pounds and reach overhead. Id. He indicated Plaintiff could constantly reach at desk level and perform bilateral handling and fingering. Id. He stated Plaintiff had the capacity for sedentary work only. Tr. at 371. He indicated his opinion was based on Plaintiff's self-reported severity of symptoms, as well as objective findings. Id.
On March 23 and May 22, 2017, the two state agency consultants 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 about six hours in an eight-hour workday; sit for a total of about six hours in an eight hour workday; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; and never climb ladders, ropes, or scaffolds. Tr. at 68-70, 84-85.
On May 14, 2018, Dr. Lehman noted occasional tightness, numbness at the toes, and cramping in Plaintiff's right ankle caused difficulty with climbing and walking. Tr. at 640. He stated Plaintiff's walking capacity was a maximum of 200 feet at a time and her standing maximum was 30 to 45 minutes. Tr. at 641. He noted she had a limp and was unable to stoop, squat, or climb. Id. He indicated Plaintiff continued to experience debilitating symptoms at the right greater than left knee and that her ADLs and work capacity remained considerably impaired by her bilateral knee conditions. Tr. at 641-42.
Dr. Tomarchio completed a medical source statement of ability to do work-related activities on January 29, 2019. Tr. at 653-58. He indicated Plaintiff could occasionally lift and carry 51 to 100 pounds, frequently lift and carry 21 to 50 pounds, and continuously lift and carry up to 20 pounds. Tr. at 653. He identified clinical findings supporting his opinion as abnormal gait, obesity, and decreased squat secondary to bilateral knee pain. Id. Dr. Tomarchio estimated Plaintiff could sit for five hours, stand for two hours, and walk for four hours at one time without interruption. Tr. at 654. He felt that Plaintiff could sit for eight hours, stand for six hours, and walk for eight hours in an eight-hour workday. Id. He indicated Plaintiff could continuously reach in all directions, handle, finger, feel, push, and pull with the bilateral upper extremities. Tr. at 655. He considered Plaintiff capable of continuously using her bilateral feet to operate foot controls. Id. Dr. Tomarchio stated Plaintiff could never climb ladders or scaffolds; occasionally balance, kneel, crawl, and climb stairs and ramps: and frequently stoop and crouch. Tr. at 656. He found that Plaintiff could never tolerate unprotected heights; occasionally tolerate moving mechanical parts, extreme cold, and vibrations; frequently tolerate operating a motor vehicle; and continuously tolerate humidity and wetness, extreme heat, and dust, odors, fumes, and pulmonary irritants. Tr. at 657.
Plaintiff argues the ALJ erred in weighing the medical opinions of record. [ECF No. 15 at 22]. She maintains that the ALJ rejected opinions from Drs. Kana and Lehman and the state agency medical consultants without valid reasons. Id. at 22-28. She contends the ALJ provided only a general conclusory statement to support his finding that the opinions were inconsistent with “normal” medical evidence of record and cited positive and negative findings in summarizing the record. Id. at 28-29. She maintains the ALJ improperly relied on indications of stability, given her continued problems and treatment, and that the record did not support a finding that she could perform work above the light exertional level. Id. at 29; ECF No. 17 at 2-3. Finally, she claims the ALJ erred in discrediting the medical opinions based on her failed attempts to secure employment because she was seeking work that required lesser exertion than her PRW. Id.
The Commissioner argues the ALJ was not required to rely on any particular medical evidence or opinion, but was required to independently assess Plaintiff's RFC based on all the relevant evidence. [ECF No. 16 at 13]. He maintains the ALJ properly considered, weighed, and explained the weight he accorded to opinions from Drs. Kana, Richardson, Thomson, and Lehman. Id. at 13-14. He contends the ALJ explained that Dr. Tomarchio's opinion was supported by the record. Id. at 14.
The ALJ was required to evaluate the medical opinions of record based on the rules and regulations in 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, and 06-3p, as Plaintiff filed her claim prior to March 27, 2017. See 20 C.F.R. § 404.1520c (stating “[f]or claims filed before March 27, 2017, the rules in 20 C.F.R. § 404.1527 apply”); 82 Fed. Reg. 15, 263 (stating the rescissions of SSRs 96-2p, 96-5p, and 06-3p were effective for “claims filed on or after March 27, 2017”). These rules require an ALJ to accord controlling weight to a treating physician's opinion if it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). “[T]reating physicians are given ‘more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'” Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
“[T]he ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 174 (4th Cir. 2011) (citing Hunter v. Su livan, 993 F.2d 31, 35 (4th Cir. 1992)). However, the ALJ cannot end his evaluation of a treating physician's opinion with a conclusion that it is not entitled to controlling weight. See SSR 96-2p, 1996 WL 374188, at *4. His decision “must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record” and must be “sufficiently specific to make clear” to the court “the weight [he] gave to the . . . opinion and the reason for that weight.” Id. at *5. Should the ALJ decline to give controlling weight to the treating physician's opinion, he must weight it and all the other medical opinions of record based on the following five factors: “(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
Prior to discussing the medical opinions, the ALJ noted “that the claimant's ankle pain demonstrated a progression of substantial improvement once the claimant underwent reconstruction surgery of the right ankle peroneal tendon sheath.” Tr. at 22. He stated Plaintiff received conservative post-operative treatment that included prescribed NSAIDs, physical therapy, and steroid injections. Id. He indicated Plaintiff's “ligament injury, plantar fasciitis, and knee pain remained stable with physical therapy and prescription pain medication.” Id. He noted Plaintiff's “physical conditions continued to improve, as evidenced by [her] own statements, along with the generally unremarkable physical exam findings reported by treating physicians and examining physicians.” Tr. at 22-23.
The ALJ stated that following Plaintiff's March 2016 reconstruction surgery of the right ankle peroneal tendon sheath, treatment notes from Advanced Therapy Solutions showed she was doing well and physical exams showed she had a little tenderness, but was neurovascularly intact, had no obvious deformity or popping through ROM, and continued to demonstrate improvement in her activity level. Tr. at 23. He admitted diagnostic imaging showed meniscal pathology of both knees for which Plaintiff received steroid injections. Id. He stated Plaintiff “was also diagnosed with peroneal muscle of the lower right leg and plantar fascial fibromatosis, ” but “reported that her plantar fasciitis was doing okay with her anti-inflammatory medication and steroid injections.” Id. He indicated Plaintiff's ankle ROM and ability to ambulate on level surfaces improved with physical therapy. Id. He noted Plaintiff “reported that she continued to get better, and her pain was around 5-10 out of 10. (3F/3, 5-7, 9, 11, 16, 19, 61, 71-73, 79, 82, 84, 87, 104, 115, 119, 123, 138, 142). Id. (citing Tr. at 309, 311-13, 315, 317, 322, 325, 367, 377-79, 385, 388, 390, 393, 410, 421, 425, 429, 444, 448).
The ALJ claimed that examination of Plaintiff's right knee showed no obvious deformity, ROM from zero to 115 degrees, negative patella grind test, tenderness along the lateral joint line, and negative Lachman's and anterior and posterior drawer tests. Id. He pointed out that Plaintiff had moderate swelling in her right ankle, but a well-healed incision and good strength and ROM. Id. He noted February 2018 x-rays of Plaintiff's knees were unremarkable. Id. He stated a May 2018 MRI showed trace joint effusion and slight lateral patella tilt with patellofemoral impingement, but no strong findings to indicate a recurrent meniscal tear. Id. He indicated Dr. Lehman's exam showed no swelling, normal peripheral pulses, no focal neurological deficits, no radicular pain, no effusion, right ankle ROM from zero to 100 degrees, no clubbing, no cyanosis, no edema, normal peripheral pulses, and no neurological deficits. Tr. at 23-24. He acknowledged Plaintiff's report of swelling with prolonged walking, but also recognized that she had reported it improved with Celebrex. Tr. at 24.
The ALJ wrote: “Perhaps the most telling evidence that the claimant is not disabled is that she testified that she continued to look for work as recently as December 2018. (9F; HT) This evidence, although not dispositive on the issue of disability, strongly suggests a greater degree of functional capacity than claimed.” Id.
The ALJ noted that Dr. Tomarchio had observed Plaintiff to ambulate rapidly down the hallway with a slight limp, to appear comfortable, and to rise from the supine position. Id. He stated Dr. Tomarchio had found no evidence of edema, cyanosis, or clubbing or of joint redness, swelling, or effusion. Id. He noted the neurological exam was unremarkable. Id.
The ALJ acknowledged that Dr. Kana was Plaintiff's treating orthopedist, but gave “partial weight” to his opinion, noting Plaintiff had recently undergone surgery at the time he provided it. Tr. at 25. He stated that the subsequent record “demonstrates an improvement in her condition with her prescribed course of treatment” and “demonstrates the claimant's other physical impairments remained stable with conservative treatment.” Tr. at 26.
The ALJ recognized Dr. Lehman as an examining physician, but gave “little weight” to his opinion, “as it does not adequately account for the improvement in the claimant's ankle pain following her surgery” and “is not fully consistent with the generally normal physical examination findings contained throughout the record.” Id. He further stated Dr. Lehman's opinion did not “adequately account” for Plaintiff's “ability to look for work despite her physical impairments.” Id.
The ALJ accorded “great weight” to Dr. Tomarchio's opinion, finding it to be “consistent with the record as a whole, ” “consistent with the improvement in the claimant's ankle pain following her surgery and subsequent course of treatment, ” and “consistent with the generally normal physical examination findings contained throughout the record, as well as her ability to actively look for work despite her conditions.” Tr. at 25.
The ALJ gave “little weight” to Drs. Richardson's and Thomson's opinions, considering them “not fully consistent with the record evidence as a whole” and “the generally normal physical examination findings reported in the claimant's medical file.” Id. He emphasized that the record supported an RFC for medium work, as opposed to the light work they indicated, because Plaintiff had improved following her surgery and was actively seeking employment despite her impairments. Id.
Although the ALJ provided multiple reasons for the specific weight he allocated to each opinion, it does not appear that he adequately considered the relevant factors in 20 C.F.R. § 404.1527(c).
This is particularly obvious as to Dr. Kana's opinion. “While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors [in 20 C.F.R. § 404.1527(c)] before deciding how much weight to give the opinion.” Dowling v. Commissioner of Social Security Administration, 986 F.3d 377, 385 (4th Cir. 2021) (emphasis in original) (citing Arakas v. Comm'r of SSA, 983 F.3d 83, 107 n.16 (4th Cir. 2020) (“20 C.F.R. § 404.1527(c) requires ALJs to consider al
of the enumerated factors in deciding what weight to give a medical opinion.” (emphasis in original)); Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000) (agreeing with the “[s]everal federal courts [that] have concluded that an ALJ is required to consider each of the § 404.1527[c] factors” when weighing the medical opinion of a treating physician)). Although the ALJ acknowledged that Dr. Kana was Plaintiff's treating orthopedist, he considered neither the “[l]ength of the treatment relationship and the frequency of examination, ” nor the “[n]ature and extent of the treatment relationship, ” as required by 20 C.F.R. § 404.1527(c)(2)(i) and (ii). He touched on, but dismissed observations that arguably supported Dr. Kana's opinion, including tenderness in the right ankle and knee, swelling in the right ankle, reduced ROM of the right knee, and effusion in the right knee joint. Tr. at 23. He neglected to address other signs that arguably supported Dr. Kana's opinion, including crepitus of the right knee with ROM exercises and positive McMurray's maneuver. Tr. at 311, 379. He erroneously concluded that the record showed negative patella grind test, Tr. at 23, where Dr. Kana noted positive patella grind test. Tr. at 311, 379.
Dr. Rabe also recorded positive patella grind test. Tr. at 339.
The ALJ failed to adequately evaluate the consistency of Dr. Kana's opinion with the other evidence of record in accordance with 20 C.F.R. § 404.1527(c)(4). Dr. Kana limited Plaintiff to sedentary work only. Tr. at 371. This was somewhat consistent with Dr. Lehman's opinion that Plaintiff was limited to walking a maximum of 200 feet at a time and standing for 30 to 45 minutes. Tr. at 641. It was also arguably consistent with Dr. Tomarchio's statement that Plaintiff “may have some difficulty with standing for prolonged periods or walking long distances, ” but appeared to be able to sit without difficulty. Tr. at 661. The restriction to sedentary work was consistent with evidence of impaired gait. See Tr. at 463, 641, 653, 660, 672. It was also consistent with Plaintiff's statements to her providers as to standing and walking. See Tr. at 338, 377, 618, 640, 660. The ALJ's conclusion that Dr. Kana's opinion was inconsistent with later evidence neglects evidence that cortisone injections were only effective for a short period, that Dr. Kana had authorized additional knee surgery, and that Plaintiff was unable to pursue additional treatments because of her financial situation and lack of insurance, Tr. at 338, 339, 377, 379.
The ALJ similarly failed to consider whether Dr. Lehman's examination findings supported his opinion, as required pursuant to 20 C.F.R. § 404.1527(c)(3). He ignored Dr. Lehman's observations of positive femoral grind test, limited ROM of the knees, a hypermobile right patella, positive McMurray's test, diffuse swelling about the hindfoot, and limited dorsiflexion to zero degrees consistent with Achilles tendon contracture. Tr. at 640.
The ALJ rejected all opinions for less than an RFC for medium work because Plaintiff made efforts to obtain other work and he felt that the record reflected her medical improvement. Tr. at 23-25. In doing so, he ignored the possibility that Plaintiff sought work that required lesser exertion than her PRW. Although the record reflects Plaintiff's reports of improvement to her right ankle following surgery and that Celebrex was effective at addressing swelling, it also reflects her reports and objective evidence of ongoing problems with her right ankle and bilateral knees. The ALJ cited Plaintiff's August 12, 2016 visit with Dr. Kana to corroborate his conclusion that she “reported that she continued to get better.” Tr. at 23. In fact, Plaintiff reported during the visit that the last cortisone injection had only relieved her knee pain for a week; that she was having difficulty walking, getting out of a chair, and going up and down stairs; and that she wanted her knee fixed. See Tr. at 377 (corresponding to the ALJ's citation of Exhibit 3F, p. 71). The ALJ failed to address observations from other providers that were more consistent with the restrictions Drs. Kana, Lehman, Richardson, and Thomson provided than with Dr. Tomarchio's opinion and the RFC for medium work. He failed to acknowledge that PT Brown indicated Plaintiff was limited with lifting and carrying activities and experienced increased pain with increased activity. Tr. at 462. He also neglected PT Butts's January 2019 observations of limited endurance with standing and walking, lumbar lordosis, limited trunk flexion and extension and bilateral side bending and rotation, and reduced strength in the hips, ankles, knees, and feet. Tr. at 672-74.
Substantial evidence does not support the ALJ's weighing of the medical opinions of record, given his failure to thoroughly consider the factors in 20 C.F.R. § 404.1527(c).
2. Headaches
The record contains some evidence that would arguably support a finding that migraines or other headaches imposed functional limitations. Plaintiff testified that she suffered from migraine headaches that occurred an average of three times a month, lasted for a day-and-a-half at a time, caused throbbing pain through the base of her head and on the right side of her neck, sometimes were associated with vomiting, required she lie in bed with no lights or noise, and prevented her from working. Tr. at 53-55. Her treatment records document a past medical history of migraines. Tr. at 292. She indicated headaches were present on reviews of systems on March 4 and 22, 2016, April 21 and 27, and May 11, 2016, and December 21, 2018. Tr. at 279, 314, 316, 319, 321, 666; contra Tr. at 267, 277, 311, 377, 382 (denying headaches on reviews of systems on February 9, March 30, July 12, August 12, and December 2, 2016). On January 2, 2019, PT Butts noted Plaintiff's migraines affected her plan of care for physical therapy. Tr. at 670.
Plaintiff argues the ALJ's failure to consider her migraine headaches in determining her RFC warrants remand. [ECF No. 15 at 30-32]. She maintains the ALJ neither considered headaches severe at step two nor discussed evidence relating to them in explaining the RFC assessment. Id. at 31-32. She further notes that the ALJ made no explicit finding as to the severity of her headaches and that the court should not accept reasons offered by the Commissioner for his failure to do so in the absence of such an explanation from the ALJ. [ECF No. 17 at 6-7].
The Commissioner argues that the ALJ did not err in declining to assess migraine headaches as a severe impairment. [ECF No. 16 at 10-11]. He maintains the ALJ assessed multiple impairments as severe at step two and proceeded through the evaluation process. Id. at 11. He contends Plaintiff bore and failed to carry the burden to prove that migraines affected her functional abilities. Id.
Only after establishing that a medically-determinable impairment exists, should the ALJ determine whether it is severe. 20 C.F.R. § 404.1521.
Pursuant to the regulation:
Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. \Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).
A severe impairment “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “An impairment is ‘not severe' or insignificant only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Richenbach v. Heckler, 808 F.2d 309, 311 (4th Cir. 1985) (citing Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984)); see also 20 C.F.R. § 404.1522(a) (stating “[a]n impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities”).
An ALJ's error in characterizing an impairment as non-severe at step two may be rendered harmless, provided he proceeds beyond step two in the evaluation sequence and considers the impairment in assessing the claimant's RFC. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence.”); see also Washington v. Astrue, 98 F.Supp.2d 562, 580 (D.S.C. 2010) (providing that the court “agrees with other courts that find no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps”).
The ALJ failed to acknowledge the evidence set forth above and did not address migraines or other headaches at step two or in explaining the RFC assessment. See Tr. at 20-26. In Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), the court noted “remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” While Plaintiff has not presented overwhelming evidence that migraines or other headaches imposed additional functional limitations, she has presented some evidence thereof. Because the ALJ did not address this evidence in his decision, he should address it on remand.
3. Additional Allegation of Error
Plaintiff argues that the ALJ's conclusion that she could perform her PRW was unsupported, as he failed to properly evaluate the demands of that work. [ECF No. 15 at 32-34]. The undersigned declines to address this issue given the recommendation for remand on other issues.
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).