Opinion
C. A. 1:22-cv-3488-JD-SVH
08-01-2023
Arthur M.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration,Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his 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 she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On June 2, 2021, Plaintiff protectively filed an application for DIB in which he alleged his disability began March 15, 2021. Tr. at 53, 152-55. His application was denied initially and upon reconsideration. Tr. at 70-74, 7680. On February 9, 2022, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Todd Colarusso. Tr. at 34-50 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 22, 2022, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 20-33. 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 9-14. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 10, 2022. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 49 years old at the time of the hearing. Tr. at 23, 28. He completed the general educational development (“GED”) test and obtained a high school equivalency certificate. Tr. at 39. His past relevant work (“PRW”) was as a forklift operator and an event setup worker. Tr. at 46-47. He alleges he has been unable to work since March 15, 2021. Tr. at 38.
2. Medical History
Plaintiff underwent robotic prostatectomy for treatment of stage IVA prostate cancer on March 31, 2020. Tr. at 315-18. He received pelvic radiotherapy to the lymph nodes and prostate bed from September 30, 2020, through November 23, 2020. Tr. at 281-98. He continued androgen deprivation therapy (“ADT”) with Leuprolide and Enzalutamide. Tr. at 279.
On March 10, 2021, magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine showed a 4 mm left paramedian extradural abnormality at ¶ 5-S1 with abutment of the left S1 nerve and interval development of postradiation marrow changes at ¶ 5 through the sacrum. Tr. at 254-55.
Plaintiff presented to neurosurgeon Kevin Douglas Waits, M.D. (“Dr. Waits”), for evaluation of back and left lower extremity pain on March 18, 2021. Tr. at 276. He described constant aching, burning, and stabbing pain that radiated from his back to his lateral thigh and extended to the top of his leg and into his foot. Id. He rated the pain as a nine out of 10, with 10 being the most severe. Id. He indicated his pain was aggravated by working, lying down, walking, standing, and bending and improved by use of a heating pad, Gabapentin, Tramadol, and Hydrocodone. Id. Dr. Waits observed Plaintiff to have intact gait, 2+ bilateral biceps and patellar reflexes, 5/5 strength in the bilateral upper and lower extremities, intact sensation to light touch, and no Hoffman's sign or clonus. Tr. at 277. He explained the minimal disc herniation shown on the MRI did not “quite fit” Plaintiff's symptoms. Tr. at 278. He assessed lumbar radiculopathy, chronic tobacco use, and history of stage 4 prostate cancer. Tr. at 277-78. He recommended conservative treatment with lumbar epidural injections and physical therapy and encouraged smoking cessation. Tr. at 278.
Plaintiff complained of ongoing back and left lower extremity pain on April 29, 2021. Tr. at 273. He rated the pain as a nine and described it as constant aching, burning, and stabbing. Id. He said it radiated into his lateral thigh and extended to the top of his leg and into his foot. Id. He indicated the pain was exacerbated by working, lying down, walking, standing, and bending. Id. He endorsed associated numbness and weakness. Id. He noted physical therapy had failed to provide significant relief and he had been unable to afford the out-of-pocket cost for lumbar steroid injections. Id. Dr. Waits observed intact gait, normal biceps and patellar reflexes, 4/5 strength on left hip flexor, knee extension, and knee flexion, 4+/5 strength on left dorsiflexion, extensor hallucis longus, and plantar flexion, 5/5 strength elsewhere, diminished sensation in the left lower extremity, and otherwise intact sensation to light touch. Tr. at 274. He assessed lumbar radiculopathy versus radiation-induced neuropathy, chronic tobacco use, and history of stage 4 prostate cancer, status post-proctectomy and radiation and currently undergoing chemotherapy. Id. He prescribed a Medrol Dosepak and increased Gabapentin to 300 mg three times a day. Tr. at 275.
Plaintiff presented to neurologist Michael S. Baugh, M.D. (“Dr. Baugh”), for a consultation on May 13, 2021. Tr. at 245-48. He complained of left-greater-than-right lower extremity pain, paresthesia, numbness, and weakness that had begun three months prior. Tr. at 246. He described constant symptoms from his knee to his ankle that were worse in the ankle and left great toe. Id. He indicated his symptoms were exacerbated by standing and walking. Id. He endorsed chronic low back pain and two prior falls. Id. Dr. Baugh noted absent ankle jerk and hyperactive upper extremity reflexes. Tr. at 247. He assessed pain in the left leg, paresthesia and hypoesthesia of the skin, personal history of irradiation, low back pain, other spondylosis with radiculopathy in the lumbosacral region, and malignant neoplasm of the prostate. Tr. at 245. He ordered electromyography (“EMG”) and nerve conduction studies (“NCS”) of the lower extremities, prescribed Gabapentin 100 to 200 mg twice during the day, and continued Gabapentin 600 mg at night. Tr. at 245-46.
Plaintiff underwent bilateral simple orchiectomy for treatment of prostate cancer on May 17, 2021. Tr. at 269-70.
On June 2, 2021, Plaintiff reported improvement in his left leg pain on Gabapentin, but noted it made him feel drowsy during the day such that he could not work in that state. Tr. at 242. He endorsed low back pain and rated his overall pain as a three on the medication. Id. Dr. Baugh explained the EMG and NCS showed a left L5 and S1 radiculopathy with no evidence of other mononeuropathy, motor radiculopathy, polyneuropathy, or myopathy. Tr. at 241. He recommended consideration of lumbar spine surgery and prescribed Gabapentin 100 to 200 mg twice during the day and 600 mg at night. Id.
Plaintiff reviewed results of the EMG and NCS with physician assistant Allison L. Hedden (“PA Hedden”) on June 10, 2021. Tr. at 262-63. He denied a change in symptoms. Tr. at 263. PA Hedden indicated it was less likely Plaintiff had radiation-induced neuropathy given the results of the EMG and NCS. Tr. at 262-63. She noted it was more likely Plaintiff's symptoms were related to the L5-S1 disc herniation. Tr. at 263. She acknowledged Plaintiff had undergone physical therapy without improvement and had been unable to afford the out-of-pocket cost associated with recommended lumbar injections. Id. PA Hedden observed tenderness to the lumbar spine, motor weakness, diminished left lower extremity sensation, and 4+/5 strength diffusely and in the left lower extremity. Tr. at 264-65. They discussed treatment options, and Plaintiff informed PA Hedden that he would be losing his insurance soon and “his financial situation [was] currently maintaining his options.” Tr. at 263. PA Hedden informed Plaintiff of the possibility of financial assistance through Northeast Georgia Medical Center and indicated that “should he be granted financial assistance, [they] would be glad to assist in transitioning his care to a NGPG provider.” Id. Plaintiff indicated he would “consider this option” and “continue to figure out his health insurance options” and would contact the office “once he ha[d] a more definite plan.” Id.
State agency medical consultant M. Muoneke, M.D. (“Dr. Muoneke”), provided an opinion as to Plaintiff's anticipated physical residual functional capacity (“RFC”) 12 months from his alleged onset date of disability. Tr. at 56-57. Dr. Muoneke expected Plaintiff would be able to lift and/or carry 10 pounds frequently and 20 pounds occasionally; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently balance, kneel, crouch, and crawl; occasionally stoop and climb ramps, stairs, ladders, ropes, and scaffolds; and avoid concentrated exposure to vibration and hazards. Id. At the reconsideration stage, a second state agency medical consultant, Donald Morford, M.D. (“Dr. Morford”), assessed a similar RFC for the same time period, except he found Plaintiff would only occasionally be able to kneel, crouch, and crawl. Compare Tr. at 56-57, with Tr. at 62-63.
On September 20, 2021, internal medicine physician Brent J. Archer, M.D. (“Dr. Archer”), completed a medical source statement. Tr. at 549-50. He stated he had been seeing Plaintiff since 2012. Tr. at 549. He diagnosed lumbar radiculopathy as characterized by back pain and left leg weakness. Id. He provided a guarded prognosis. Id. He indicated Plaintiff was capable of the following: sitting for zero to two hours in an eight-hour workday; standing/walking for one hour in an eight-hour workday; rarely lifting/carrying 10 pounds or less; never lifting/carrying 20 pounds or greater; rarely pushing or pulling with the upper extremities; never pushing or pulling with the lower extremities; occasionally reaching and handing; frequently fingering and feeling; and avoiding exposure to vibration and hazards. Id. He noted Plaintiff would need to alternate between sitting and standing every two to three minutes. Id. He stated Plaintiff's experience of pain or other symptoms was constantly severe enough to interfere with attention and concentration needed to perform even simple work tasks. Tr. at 550. He indicated an MRI showed severe nerve root impingement at the left S1 nerve root and Plaintiff had been unresponsive to physical therapy and medications. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
Plaintiff testified he was 5'9” tall, weighed 150 pounds, and was righthanded. Tr. at 39. He said he was married and had no children under the age of 18. Id. He stated he last worked as a forklift driver for DM Building Products. Id. He indicated he had previously assembled event tents for Moniere Tent Rental from 2009 through 2013. Tr. at 40.
Plaintiff testified problems with his back prevented him from working. Tr. at 41. He stated he had severe pain in his lower back that radiated down his bilateral legs. Id. He indicated he felt weakness and a lot of pain. Id. He said he was unable to stand and do things he had done in the past. Id.
Plaintiff stated he also had stage four prostate cancer. Id. He said he had been taking chemotherapy pills for two years. Id. He indicated the chemotherapy pills caused him to feel tired and weak, experience hot flashes, and have poor memory. Id.
Plaintiff stated difficulty bending caused him some trouble with putting on his pants and shoes. Tr. at 42. He denied problems bathing and grooming, but noted he had to be very careful to avoid falling in the shower. Id.
Plaintiff said he had daily problems remembering small things. Id. He indicated he would have difficulty memorizing a short list and would have to refer back to it repeatedly. Id.
Plaintiff stated his employment was terminated after he was approved for long-term disability benefits. Tr. at 43. He said he required several surgeries for his cancer and was out of work for a while. Id. He indicated the surgeries seemed to aggravate his back pain. Id.
Plaintiff testified he discussed possible surgery with Dr. Watts during a visit in June 2021. Id. He stated Dr. Watts had informed him that he could perform surgery, but could not guarantee that it would help. Id.
Plaintiff estimated he could sit in his recliner for a couple hours at a time before requiring medication and having to lie down. Tr. at 44. He said he could stand for an hour, but it would cause him severe pain. Id. He stated he moved every few minutes while sitting. Id. He testified he required Gabapentin and Tramadol to sleep. Tr. at 45.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Bassey Duke reviewed the record and testified at the hearing. Tr. at 46-49. The VE categorized Plaintiff's PRW as a forklift operator driver, Dictionary of Occupational Titles (“DOT”) No. 921.683-050, requiring medium strength and a specific vocational preparation (“SVP”) of 3, and an event setup worker, DOT No. 929.687-030, requiring heavy exertion and an SVP of 3. Tr. at 46-47. The ALJ asked the VE if Plaintiff had any transferable skills to the sedentary exertional level. Tr. at 47. The VE testified he did not. Id. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the light exertional level; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and must avoid concentrated exposure to vibration and workplace hazards. Id. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs that the hypothetical person could perform. Id. The VE identified light jobs with an SVP of 2 as an office helper, DOT No. 239.567-010, a small products assembler, DOT No. 706.687-022, and a price marker, DOT No. 209.587-034, with 20,000, 22,000, and 100,000 positions in the national economy, respectively. Tr. at 47-48.
For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who could sit for no more than two hours in an eight-hour workday and could stand and walk in combination for no more than one hour in an eight-hour workday. Tr. at 48. He asked if the individual would be able to perform the jobs the VE identified in response to the prior question. Id. The VE testified the individual would be unable to perform those jobs or any other full-time work in the economy. Id.
The ALJ asked the VE if his testimony had been consistent with the information in the DOT. Id. The VE stated it had. Id.
Plaintiff's counsel asked the VE to consider that the individual would be off-task for more than 15% of the day. Id. He asked if the individual would be able to sustain gainful employment in the economy. Id. The VE stated the individual would not. Tr. at 49.
Plaintiff's counsel asked the VE to consider that the individual would have one unscheduled absence per month. Tr. at 49. He asked if the individual would be able to sustain gainful employment. Id. The VE stated the individual would not. Id. He confirmed that aspect of his testimony was based on his expert opinion, as opposed to the DOT. Id.
2. The ALJ's Findings
In his decision dated March 22, 2022, 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, 2025.
2. The claimant has not engaged in substantial gainful activity since March 15, 2021, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: prostate cancer and degenerative disc disease (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, the undersigned finds the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), except the individual can never climb ladders, ropes or scaffolds. The individual can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on February 16, 1972 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from March 15, 2021, through the date of this decision (20 CFR 404.1520(g)).
Tr. at 25-29.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ discounted Plaintiff's subjective allegations based on his failure to pursue continued treatment without considering his reasons for not obtaining additional treatment; and
2) the ALJ improperly evaluated Dr. Archer's opinion.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his 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.
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 he 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 him 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, he 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 his 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 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); 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 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 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 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 her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Failure to Obtain Additional Treatment
Plaintiff argues the ALJ discounted his allegations based on a failure to pursue additional treatment without engaging in the requisite consideration. [ECF No. 11 at 10]. He points to evidence that he lacked insurance and could not afford treatment. Id. at 11. He concedes the ALJ provided other reasons for rejecting his allegations as inconsistent with the record, but maintains the additional reasons could not redeem the ALJ's consideration of his lack of medical treatment without regard for his inability to afford it. [ECF No. 17 at 2]. He rejects the Commissioner's argument that he had access to free or lowcost medical providers based on references to discussions of financial assistance and transition to different providers. Id. at 3.
The Commissioner argues the ALJ thoroughly evaluated Plaintiff's subjective complaints and found they were not supported by the evidence. [ECF No. 16 at 7]. She notes the ALJ relied on inconsistencies between Plaintiff's allegations and the longitudinal treatment history, the efficacy of his treatment, his benign examination findings, Dr. Waits's statements, and the prior administrative medical findings. Id. at 8-9. She claims the ALJ relied on Plaintiff's failure to seek treatment after June 2021 as one, among several, reasons for discounting his complaints. Id. at 10. She concedes the record contains indications that Plaintiff was losing his insurance and could not afford some treatment, but points to evidence that he was offered an opportunity for financial assistance that he declined to pursue. Id. at 10-11. She maintains the ALJ cited substantial evidence to support his conclusion and his failure to discuss whether Plaintiff could afford additional treatment was harmless error. Id. at 9-10, 11-12.
ALJs must consider claimants' allegations regarding pain and other symptoms in assessing functional limitations imposed by their impairments. 20 C.F.R. § 404.1529. In accordance with 20 C.F.R. § 404.1529 and SSR 163p, ALJs are required to specifically address claimants' allegations as to the intensity, persistence, and limiting effects of pain and other symptoms and provide specific reasons for rejecting any of the alleged symptoms that might reasonably be caused by the claimants' medically-determinable impairments. See also Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (explaining the ALJ is to engage in a two-step analysis when considering a claimant's alleged symptoms: “[f]irst . . . look[ing] for objective medical evidence showing a condition that could reasonably produce the alleged symptoms” and “[i]f [he] concludes the impairment could reasonably produce the symptoms the claimant alleges, [he] is to proceed to the second step, which requires [him] to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities”).
At the second step, the ALJ should consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence.” See 20 C.F.R. § 404.1529(c). Among the evidence ALJs are to consider is the claimant's “attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed.” SSR 16-3p, 2017 WL 5180304, at *9. “[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms,” the ALJ may reasonably conclude the intensity, persistence, and limiting effects of his symptoms are not as great as he alleges. Id. at *9.
However, the ALJ cannot reject the claimant's allegations based on failure to obtain or follow prescribed treatment without first “considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints.” Id. at *9. Where the record shows the claimant failed to follow or pursue treatment, it may also include “suggestions the claimant cannot afford treatment and lacks access to free or low-cost medical services.” Id. at *10. A “claimant may not be penalized for failing to seek treatment she cannot afford; ‘it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'” Lovejoy v. Heckler, 790 F.2d 1114, 117 (4th Cir. 1985) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)).
The ALJ considered Plaintiff's testimony that “he experienced bad back pain that radiated into his legs,” “was limited in his ability to bend, reach, sit, stand and to move around because of pain,” “had to take medications to sleep,” “experienced hot flashes,” and “that it was difficult for him to remember things.” Tr. at 26. He found Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but his “contentions concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id.
After discussing Plaintiff's treatment for prostate cancer and the MRI results, the ALJ wrote the following:
However, the limited record since then simply failed to show that the claimant was as limited as he alleged. For instance, a notation from March 18, 2021, indicated the claimant was negative for gait problems, joint swelling, neck pain and neck stiffness (2F pg. 21). At that time, he possessed 5/5 strength in his upper and lower extremities bilaterally (2F pg. 22). On April 29, 2021, the claimant admitted his back pain and left lower extremity pain improved with medications such as Gabapentin and Tramadol (2F pg. 18). The claimant's motor skills were intact on May 13, 2021, and he was in no acute distress (1F pg. 9). At that time, his provider noted the claimant had no numbness, memory loss, joint swelling, joint pain or neurologic weakness (1F, pg. 8). A notation from May 17, 2021, indicated the claimant had no active problems (2F pg. 11).
On June 2, 2021, the claimant was in no acute distress and his gait was normal (1F pg. 5). He admitted that any leg pain he experienced significantly improved when he took his medications (1F pg. 4). In addition, his provider noted the claimant had no numbness, memory loss, joint swelling, joint pain, musculoskeletal weakness or neurologic weakness (1F pg. 4). A motor nerve conduction study on June 2, 2021, revealed he had left L5/S1 radiculopathy (1F pg. 12). However, it also showed no evidence of other motor radiculopathy, mononeuropathy, polyneuropathy or myopathy on his lower extremities (1F pg. 12). A notation from June 10, 2021, indicated the claimant was in no acute distress and that his gait was normal (2F pg. 9). At that time, his provider noted the claimant possessed 5/5 strength in his upper and lower extremities bilaterally except for 4+/5 in the left lower extremity (2F pg. 9). Thereafter, the claimant sought no ongoing treatment, which suggested he had no significant problems.
Tr. at 27. He noted he had further considered the medical opinion evidence in making his determination. Id.
As Plaintiff points out, notations within the medical treatment records reflect his inability to pay the out-of-pocket costs required for lumbar steroid injections and his impending loss of medical insurance coverage. See, e.g., Tr. at 243, 246, 263, 273. Because the record suggested Plaintiff's failure to pursue ongoing medical treatment was related to his financial condition, the ALJ was not permitted to reject his allegations based on his failure to obtain treatment without first considering those reasons. See SSR 16-3p, 2017 WL 5180304, at *9.
If the frequency or extent of treatment is out of line with the claimant's complaints, the ALJ may need to question the claimant as to the perceived inconsistency during the hearing. SSR 16-3p, 2017 WL 5180304, at *9. Review of the hearing transcript shows that the ALJ failed to avail himself of the opportunity to question Plaintiff about the lack of ongoing medical treatment. See generally Hr'g Tr.
The ALJ failed to comply with SSR 16-3p's requirement that he “explain how [h]e considered the individual's reasons [for not pursuing treatment] in [his] evaluation of the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10. His decision fails to reference Plaintiff's alleged loss of insurance and inability to afford out-of-pocket medical expenses. See generally Tr. at 25-29.
The Commissioner argues the court should excuse the ALJ's failure to address evidence of Plaintiff's lack of insurance and inability to afford treatment because of his failure to pursue financial assistance for his medical treatment. [ECF No. 16 at 10-11]. She points to PA Hedden's suggestion to Plaintiff that he might be able to obtain financial assistance through Northeast Georgia Medical Center and that “should he be granted financial assistance, [they] would be glad to assist in transitioning his care to a NGPG provider.” Id. The Commissioner assumes Plaintiff did not apply for the recommended financial assistance, but nothing in the record supports that assumption. It is possible that Plaintiff applied and was denied financial assistance. In the absence of questioning from the ALJ as to this matter, the court cannot assume Plaintiff failed to seek access to low-cost or free medical services. The court is also prohibited from accepting the Commissioner's argument to supplement the ALJ's failure to consider the relevant evidence. See Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 109 (4th Cir. 2020) (rejecting the Commissioner's argument as “a meritless post-hoc justification”) (citing Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (“[C]ourts may not accept appellate counsel's post hoc rationalizations for agency action.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)); Snell v. Apfel, 177 F.3d 128, 124 (2d Cir. 1999) (applying Burlington Truck in a Social Security disability case)).
Although the ALJ provided reasons in addition to Plaintiff's failure to seek ongoing treatment for discounting his allegations as to the intensity, persistence, and limiting effects of his symptoms, the additional reasons cannot redeem his improper consideration of the lack of ongoing medical treatment. Fourth Circuit precedent suggests an ALJ may err in considering failure to obtain or pursue treatment as one of several factors contrary to the claimant's statements. In Lovejoy, the court wrote:
We recognize that the Secretary did not deny benefits on the basis of noncompliance with prescribed treatment; however, it is erroneous to consider the claimant's failure to seek treatment as a factor in the determination that her impairment is not as severe as it would be to reach the ultimate conclusion that the claimant is not disabled because she failed to follow prescribed treatment when that failure is justified by lack of funds.Id. at 1117 (citing Preston v. Heckler, 769 F.2d 988 (4th Cir. 1995)).
In light of the foregoing, the undersigned recommends the court find the ALJ failed to apply the proper legal standard in evaluating Plaintiff's allegations as to the intensity, persistence, and limiting effects of his symptoms.
2. Evaluation of Medical Opinion
Plaintiff argues the ALJ failed to properly evaluate Dr. Archer's opinion. [ECF No. 11 at 12-15]; [ECF No. 17 at 4-9]. He claims the ALJ improperly considered the specialization factor, discounting Dr. Archer's specialization, but crediting the state agency consultants' specializations, where all three physicians had specializations in internal medicine. Id. at 1314. He maintains the ALJ erred in discounting Dr. Archer's opinion based on a lack of treatment because he could not afford additional treatment and testing. Id. He claims the ALJ incorrectly concluded that Dr. Archer's opinion was contrary to that of Dr. Waits. Id. at 14. He asserts Dr. Archer's opinion supports a maximum exertional capacity for sedentary work and Medical-Vocational Rule 201.14 directs a finding of “disabled” for an individual of his age, education, and PRW limited to sedentary work. Id. at 15.
The Commissioner argues the ALJ properly evaluated the persuasiveness of Dr. Archer's opinion. [ECF No. 16 at 12-16]. She maintains the ALJ considered the supportability and consistency of Dr. Archer's opinion in accordance with the applicable regulation. Id. at 14-16. She notes the ALJ credited Dr. Waits's opinion over that of Dr. Archer based on Dr. Waits's specialization. Id. at 14. She asserts the ALJ properly considered the absence of treatment records from Dr. Archer in accordance with direction in 20 C.F.R. § 404.1520c(c)(3) to consider the “length, frequency, purpose, and extent of the treatment relationship.” Id. at 15. She disputes Plaintiff's argument as to specialization and maintains the ALJ did not credit the state agency consultants' specialization over that of Dr. Archer, but properly credited Dr. Waits's neurosurgical specialization over Dr. Archer's internal medicine specialization in the context of interpreting the MRI results. Id. at 16. She notes the ALJ also considered the state agency consultants' specialization as “highly qualified and experts in Social Security disability evaluation” in accordance with 20 C.F.R. § 404.1513a(b)(1). Id. at 16.
The applicable regulation requires an ALJ to consider all the medical opinions of record based on: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. § 404.1520c(b), (c). However, the ALJ is only required to discuss the supportability and consistency of each medical source's opinion, as these factors are considered most important in assessing its persuasiveness. 20 C.F.R. § 404.1520c(a), (b)(2). Evaluation of the supportability factor requires the ALJ to consider a medical opinion more persuasive based on “the more relevant . . . objective medical evidence and supporting explanations” the medical source provides. 20 C.F.R. § 404.1520c(c)(1). The ALJ's assessment of the consistency factor requires he consider a medical source's opinion more persuasive if it is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2).
Although ALJs have discretion in evaluating the persuasiveness of medical opinions, substantial evidence must support the ALJ's conclusions as to the supportability and consistency of those opinions. If the ALJ materially errs in evaluating these factors, the court may remand the case. See Flattery v. Commissioner of Social Security Administration, C/A No. 9:20-2600-RBH-MHC, 2021 WL 5181567, at *8 (D.S.C. Oct. 21, 2021), (concluding substantial evidence did not support the ALJ's evaluation of the supportability factor where he ignored the claimant's continuing treatment with the medical provider and portions of the provider's treatment notes), adopted by 2021 WL 5180236 (Nov. 8, 2021); Joseph M. v. Kijakazi, C/A No. 1:20-3664-DCC-SVH, 2021 WL 3868122, at *13 (D.S.C. Aug. 19, 2021) (finding the ALJ erred in assessing a medical opinion pursuant to 20 C.F.R. § 404.1520c and § 416.920c because he misconstrued the date the plaintiff last saw the medical provider, neglected the continuing treatment relationship, and erroneously claimed the last treatment visit was prior to the plaintiff's alleged onset date), adopted by 2021 WL 3860638 (Aug. 30, 2021).
The ALJ addressed Dr. Archer's opinion as follows:
On September 20, 2021, Brent Archer, M.D., opined the claimant had significant limitations because of lumbar radiculopathy, back pain and left leg weakness (4F). However, his opinion was not
considered persuasive because it was inconsistent with the claimant's treatment record. Specifically, Dr. Archer is not a specialist, but rather an internal medicine physician. This opinion is further compromised by the lack of significant medical records in the case file documenting Dr. Archer's treatment of the claimant. Moreover, Dr. Archer specifically cites to the claimant's MRI showing nerve root compression at the left S1 nerve root as support for his assigned limitations. However, when Dr. Kevin Watts, a neurosurgeon, reviewed the same MRI he opined that the claimant would be in need of no more than conservative care. (Ex. 2F/23).
For example, it was inconsistent with an MRI of his lumbar spine on March 9, 2021, which revealed the lumbar vertebral heights were maintained (1F pg. 16). At most, it revealed he only had grade one retrolisthesis at the L5/S1 level with the remainder of the disc spaces maintained (1F pg. 16). It revealed no severe canal or neuroforaminal stenosis (2F pg. 8). His opinion was inconsistent with a notation from March 18, 2021, which indicated the claimant was negative for gait problems, joint swelling, neck pain and neck stiffness (2F pg. 21). It was inconsistent with the fact that on April 29, 2021, the claimant admitted his back pain and left lower extremity pain improved with medications such as Gabapentin and Tramadol (2F pg. 18). It was inconsistent with the fact that a notation from May 17, 2021, indicated the claimant had no active problems and that on June 2, 2021, the claimant was in no acute distress and admitted any leg pain he experienced significantly improved when he took his medications (1F pgs. 4, 5,) (2F pg. 11). Finally, his findings were inconsistent with the fact the claimant sought no treatment during the later portion of 2021 and the beginning of 2022.
Tr. at 27-28.
The ALJ erred in citing Plaintiff's failure to seek treatment in late-2021 and early-2022 as a reason to discredit Dr. Archer's opinion without having elicited an explanation from Plaintiff for the failure to obtain treatment. He also erred in finding the state agency consultants' opinions “related to their specialty” and Dr. Archer “was not a specialist,” despite the fact that all three physicians were internal medicine physicians. See Tr. at 27. The Commissioner appears to argue the ALJ did not use Dr. Archer's internal medicine specialization as a reason for generally discrediting his opinion, but as a reason for crediting the opinion of Dr. Waits, the neurosurgeon, over his regarding the MRI results. [ECF No. 16 at 14]. If this were correct, the undersigned would consider it logical for the ALJ to have credited the opinion of a neurosurgeon over that of an internal medicine physician with respect to neurological findings. However, the explanation set forth above suggests the ALJ generally discredited Dr. Archer's opinion based on his internal medicine specialization, which is inconsistent with his having credited the state agency consultants' opinions based on the same specialization.
But for the ALJ's failure to consider Plaintiff's reasons for declining to pursue additional treatment, the undersigned might be inclined to find harmless the ALJ's errors in evaluating Dr. Archer's opinion. The ALJ reasonably concluded the opinion was not supported because the record was devoid of evidence “documenting Dr. Archer's treatment of the claimant.” Tr. at 27. Despite his assertion that he had treated Plaintiff since 2012, the administrative record does not contain a single treatment note from Dr. Archer. Because Dr. Archer provided little “relevant . . . objective medical evidence and supporting explanations,” the ALJ did not err in evaluating the supportability factor. See 20 C.F.R. § 404.1520c(c)(1). The ALJ also provided a reasonable explanation to support his finding that Dr. Archer's opinion was inconsistent with the other evidence. He cited Plaintiff's representations to his medical providers, Dr. Waits's impression, and the objective findings as inconsistent with Dr. Archer's opinion. Tr. at 27-28. Thus, substantial evidence appears to support the ALJ's evaluation of the persuasiveness of Dr. Archer's opinion.
The errors do not appear to have materially affected the ALJ's evaluation of the supportability and consistency factors.
However, in light of the recommendation for remand, the ALJ should reconsider Dr. Archer's opinion in light of all the evidence.
If Dr. Archer examined and treated Plaintiff during or after the relevant period, Plaintiff should supplement the administrative record with his treatment notes on remand.
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).