Opinion
5:20-CV-97-FL
05-21-2021
TOMMIE LEE BARNES, JR., Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-24, -26] pursuant to Fed.R.Civ.P. 12(c). Claimant Tommie Lee Barnes, Jr. ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on August 17, 2018, alleging disability beginning January 15, 2017. (R. 15, 193-94). His claim was denied initially and upon reconsideration. (R. 15, 91-118). A hearing before the Administrative Law Judge ("ALJ") was held on September 10, 2019, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 15, 28-90). On November 19, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-27). On January 13, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . .. past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §404.1520a(e)(3).
In this case, Claimant alleges the following errors: (1) the ALJ failed to resolve an apparent conflict between the testimony of the VE and the Dictionary of Occupational Titles ("DOT"), (2) the ALJ failed to evaluate the opinion of Dr. Susannah Ogunwo, and (3) the ALJ failed to perform a function-by-function evaluation of Plaintiff's ability to stand and walk. Pl's Mem. [DE-25] at 5-14.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since January 15, 2017, the alleged onset date. (R. 17). Next, the ALJ determined Claimant had the following severe impairments: diabetes mellitus with diabetic neuropathy, degenerative disc disease/degenerative joint disease lumbar spine, and obesity. Id. The ALJ also found Claimant had nonsevere impairments of diverticulitis, hypertension, and hyperlipidemia. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations: "he can frequently climb, balance, stoop, kneel, crouch, and crawl. He can do no overhead reaching or lifting bilaterally but he can frequently reach in other directions." (R. 18-23). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence. (R. 19). At step four, the ALJ concluded Claimant had the RFC to perform the requirements of his past relevant work as a security guard. (R. 23).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
V. DISCUSSION
A. The ALJ did not err in discussing an apparent conflict between the VE's testimony and the DOT.
Claimant contends that the ALJ erred in failing to explain an apparent conflict between the VE's testimony that Claimant can perform his past work as a security guard and the DOT, for the DOT states that the job of security guard requires frequent reaching, but the ALJ limited Claimant to no reaching overhead bilaterally. Pl's Mem. [DE-25] at 6.
Pursuant to S.S.R. 00-4p, the ALJ must "inquire, on the record, ... whether the vocational expert's testimony conflict[s] with the [DOT], and [the Ruling] also requires that the ALJ elicit a reasonable explanation for and resolve conflicts between the expert's testimony and the [DOT]." Pearson v. Colvin, 810 F.3d 204, 207-08 (4th Cir. 2015) (internal quotation marks omitted) (citing S.S.R. 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). However, not "all possible conflicts must be identified and resolved," but rather only "apparent conflicts," i.e., "where the expert's testimony seems to, but does not necessarily, conflict with the [DOT]." Id. at 209. The ALJ must elicit from the VE "a reasonable explanation for the apparent conflict," S.S.R. 00-4p, at *4, and the ALJ has not fulfilled his duty to fully develop the record if it "contains an unresolved conflict between the expert's testimony and the [DOT]" or if the ALJ "ignores an apparent conflict because the expert testified that no conflict existed," Pearson, 810 F.3d at 210. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10.
At the hearing, the ALJ asked the VE, "if you give us an opinion that conflicts with the Dictionary of Occupational Titles or is outside the Dictionary of Occupational Titles, could you please advise us of that and the basis for your opinion?" (R. 81). The VE responded that he would. Id. In the hypothetical posed to the VE, the ALJ included the following limitation: "The individual cannot do any overhead reaching or lifting bilaterally, but can frequent reach in other directions." (R. 83). The ALJ asked if the hypothetical individual could perform Claimant's past work, and the VE responded, "Yes, your honor, I think a person would be able to do work as an administrative clerk as well as a security guard and could not do the platoon sergeant job." Id. The VE further opined that the hypothetical individual could perform the jobs of file clerk, office helper, and sorter or classifier. Id. The ALJ asked the VE if his testimony was consistent with the DOT, and the VE responded: "Well, it [was], your honor, with the exception that the DOT doesn't distinguish between reaching overhead and reaching in all other directions, so the testimony on no overhead reaching, oh, I have-well, that testimony was based on my familiarity with these jobs and my experience." (R. 86). The ALJ clarified, "So you've seen the security job, the file clerk, the office helper, the sorter and classifier done and those do not require overhead lifting or reaching?" Id. The VE responded, "That is correct." Id.
The DOT states that the job of security guard requires frequent reaching. DICOT § 372.667-034. As the VE testified, the job title does not distinguish between reaching overhead or in other directions. Id. The RFC, on the other hand, does distinguish between the two and limits Claimant to no reaching overhead but frequent reaching in other directions. (R. 18). In Pearson, there was a similar discrepancy; the hypothetical posed to the VE in that case limited the individual to occasional overhead lifting and reaching using the upper nondominant extremity, and the jobs identified by the VE required frequent reaching. 810 F.3d at 206, 210. The Fourth Circuit held that the discrepancy between occasional overhead reaching and frequent reaching was an apparent conflict. Id. at 211 ("Although the Dictionary does not expressly state that the occupations identified by the expert require frequent bilateral overhead reaching, the Dictionary's broad definition of 'reaching' means that they certainly may require such reaching."). Likewise, here, the VE's testimony that the hypothetical individual can perform Claimant's past work as a security guard with a limitation to no overhead reaching apparently conflicts with the DOT's description of the job, which requires frequent reaching.
The Fourth Circuit in Pearson held that the apparent conflict "does not mean that an ALJ must find Pearson, or any other claimant with this limitation, unable to perform these jobs. Rather, it simply means that the ALJ and the expert should address exactly what form of reaching the stated occupations require and whether the claimant can fulfill those requirements." Id. The court further held that at step five of the sequential evaluation process, in order for an ALJ to find that a claimant can perform work that exists in significant numbers in the national economy, "[t]he vocational expert must testify to how many of these positions do not require frequent bilateral overhead reaching." Id. If the VE testifies that a sufficient number of jobs do not require frequent overhead reaching, notwithstanding the DOT's general requirement of frequent reaching, then the ALJ may properly find the claimant not disabled at step five. Id.
Here, unlike in Pearson, the ALJ found Claimant not disabled at step four of the sequential evaluation process because the ALJ found that Claimant can perform his past work as a security guard. The issue was not whether a significant number of jobs exist in the national economy that Claimant can perform, but whether Claimant could perform his past work as a security guard. 20 C.F.R. § 404.1520. The ALJ was thus required to resolve apparent conflicts between the VE's testimony and the DOT on that issue. See Camacho v. Berryhill, No. 4-.17-CV-68-D, 2018 WL 1884720, at *6 (E.D. N.C. Apr. 4, 2018) (noting that the ALJ must resolve apparent conflicts at step four of the sequential evaluation process even though the claimant bears the burden of proof at that step), adopted by 2018 WL 1881247 (E.D. N.C. Apr. 19, 2018).
The ALJ elicited sufficient testimony from the VE here to resolve the apparent conflict and find that Claimant could perform his past work. The ALJ asked the VE whether his testimony was consistent with DOT, and the VE responded that there was a conflict in that the DOT does not distinguish between reaching overhead and in other directions. (R. 86). The VE stated that his testimony was based on his experience and familiarity with the jobs of security guard, file clerk, office helper, sorter, and classifier; the ALJ clarified that the VE had seen those jobs performed without overhead reaching; and the VE responded affirmatively. Id. Accordingly, the ALJ resolved the apparent conflict on the record, and the ALJ did not err in relying on the VE's testimony that Claimant could perform his past work. See Brown v. Colvin, No. 7:15-CV-157-RN, 2016 WL 1559141, at *5 (E.D. N.C. Apr. 18, 2016) (holding that where the DOT did not address a sit/stand option, the VE's testimony did not conflict with the DOT, but even if it did, the VE offered a reasonable explanation for the inconsistency because she testified that, based on her experience, there were jobs that the claimant could perform); Jacobs v. Colvin, No. 7:13-CV-184-RJ, 2015 WL 1471256, at *8 (E.D. N.C. Mar. 31, 2015) (finding no error when an inconsistency was resolved "by explaining that a subset of jobs existed within the occupations of cleaner and cafeteria attendant that met the limitations posited by the ALJ," even though the offered jobs of cleaner and cafeteria attendant did not, on their face, match the RFC).
B. The ALJ did not err in failing to discuss Claimant's application for a disability parking placard.
Claimant contends the ALJ failed to weigh a medical opinion of Dr. Ogunwo contained in a June 20, 2017 application for a disability parking placard. Pl's Mem. [DE-25] at 10-12. Because Claimant protectively filed his application on August 17, 2018, 20 C.F.R. § 404.1520c governs how the ALJ considers the medical opinions in Claimant's case. That regulation provides that the ALJ "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical fmding(s), including those from [Claimant's] medical sources." 20 C.F.R. § 404.1520c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that "[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions or prior administrative medical finding(s) will be"; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that "a medical source who has received advanced education and training to become a specialist may be more persuasive"; and (5) other factors that tend to support or contradict a medical opinion." Id. § 404.1520c(c)(1)-(5). The regulations require the ALJ to "articulate in [her] determination or decision how persuasive [she] find[s] all of the medical opinions and all of the prior administrative medical findings in [the] case record." Id. § 404.1520c(b). However, when a medical source provides multiple opinions, the ALJ may use a single analysis to evaluate all the opinions from a single source, and the ALJ is "not required to articulate how [she] considered each medical opinion or prior administrative medical finding from one medical source individually." Id.
20 C.F.R. § 404.1520c applies to claims filed on or after March 27, 2017.
On June 20, 2017, Dr. Ogunwo completed a North Carolina Division of Motor Vehicles check-box form titled, "Application for Renewal of Disability Parking Placard or Total and Permanent Disability Parking Placard." (R. 1137). Dr. Ogunwo checked a box indicating that Claimant "[c]annot walk 200 feet without stopping to rest." Id.
This court has not yet addressed whether checking a box on a DMV form is a medical opinion, but other districts have held that a check-box application for a parking placard is not a medical opinion within the meaning of the regulations. See Young v. Saul, No. CV 19-220 GJF, 2020 WL 1644301, at *10 (D.N.M. Apr. 2, 2020) ("the Court questions whether merely checking boxes on a certificate of eligibility for a parking placard would even qualify as a medical opinion- and other courts are similarly skeptical") (collecting cases); Garza v. Berryhill, No. CV 17-17 JCH/SCY, 2018 WL 3195146, at *3 (D.N.M. Feb. 12, 2018) ("Courts have concluded that checking boxes on handicap parking applications do not constitute medical opinions and that an ALJ therefore has no duty to address them.") (collecting cases), adopted by 2018 WL 1322144 (D.N.M. Mar. 14, 2018); Kujawa v. Berryhill, No. EP-16-CV-81-MAT, 2018 WL 3435355, at *2 (WD. Tex. July 16, 2018); Walker v. Colvin, No. 13-CV-03345-CBS, 2015 WL 1816589, at *11 (D. Colo. Apr. 20, 2015); Moore v. Colvin, No. 13-CV-614-FHM, 2014 WL 5765665, at *3 (N.D. Okla. Nov. 5, 2014) ("The court finds that the checking of a box on the application for a parking placard, standing alone, does not qualify as a medical opinion that the ALJ was required to discuss."); Bryant v. Astrue, No. 09-4159-RDR, 2010 WL 4628721, at *7 (D. Kan. Nov. 8, 2010). Here, Dr. Ogunwo was presented with a DMV form that contained seven check-box fields for various conditions, and she selected a box indicating that Claimant "cannot walk 200 feet without stopping to rest." (R. 1137). There is no space on the form for elaboration, and Dr. Ogunwo did not offer further comment on the form regarding Claimant's ability to walk. Id. As other districts have held, Dr. Ogunwo's checkmark on a DMV application for a parking placard is not a medical opinion. See Garza, 2018 WL 3195146, at *3. Accordingly, the ALJ did not err in failing to weigh the form.
Defendant contends that any error in failing to weigh the form is harmless because the ALJ thoroughly discussed the other evidence. Def.'s Mem. [DE-27] at 16. Other courts have held that even if a disability parking application is a medical opinion, a failure to consider it is harmless error. See Garza, 2018 WL 3195146, at *3; Wilson v. Colvin, No. 13-CV-113-FHM, 2014 WL 357052, at *3 (N.D. Okla. Jan. 31, 2014) ("To be clear, the court does not consider the handicapped parking application to be opinion evidence that the ALJ was necessarily required to discuss in detail," but "to the extent the handicapped parking application can be considered a medical opinion, Mr. Brokenicky's records do not contain examination notes or findings to support the opinion such that it is even conceivable that a remand for the purpose of further consideration of Mr. Brokenicky's 'opinion' would produce a different result."); Livingston v. Astrue, No. 09-14202-CIV, 2010 WL 5851124, at *8 (S.D. Fla. Feb. 26, 2010) ("It would be better practice for the ALJ to address all the various disability statements, but this shortcoming does not amount to reversible error, at least under the particular facts of this case [because] disabled parking permits are generally of little relevance to a formal disability analysis."). Here, the ALJ thoroughly discussed Claimant's ability to walk, including Claimant's testimony that he can stand and walk for ten minutes before needing to sit and exams showing normal gait in March 2017, ambulation without assistance in October 2017, ambulation with a stiff lower back in May 2018, normal gait and no suggestion of difficulty ambulating in October 2018, and a steady gait in March 2019. (R. 19-21). The ALJ summarized that the longitudinal record "does not show ongoing neurological deficit, gait disturbances, or lower extremities weakness." (R. 21). The check-box application for a disability parking placard is not a medical opinion, but even if the ALJ erred in failing to discuss it, any error was harmless.
C. The ALJ did not err in failing to perform a function-by-function evaluation.
Claimant contends the ALJ erred in failing to perform a function-by-function evaluation of his ability to stand and walk. Pl's Mem. [DE-25] at 12-14. "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). However, the Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand 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." Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.
Here, even if the ALJ failed to perform a function-by-function analysis of Claimant's ability to stand and walk, the RFC discussion provides a sufficient basis for meaningful review. In support of his argument, Claimant cites his testimony that he cannot stand for more than ten minutes at a time, Dr. Ogunwo's statement on Claimant's application for a parking placard that Claimant cannot walk two hundred feet without stopping to rest, Dr. Abu Sharifuzzaman's instruction to Claimant in October 2017 that he should avoid prolonged standing and walking, Claimant's September 2018 Oswestry Disability Index of sixty percent, and Claimant's one hundred percent VA disability rating. Pl's Mem. [DE-25] at 13-14.
First, the ALJ summarized Claimant's testimony, including his testimony that he could stand or walk for ten minutes before needing to sit. (R. 19). The ALJ found that Claimant's statements were inconsistent with the medical and other evidence and that "the record fails to support the level of limitation he [] alleged." Id. The ALJ cited a March 2017 physical examination showing normal gait, normal neurological findings, and 5/5 muscle strength; an August 2017 exam showing minimal abnormal findings and normal neurological and extremity findings; an October 2017 exam showing abnormal findings, imaging showing minimal multilevel degenerative disc disease and mild facet arthropathy, and ambulation without assistance; a May 2018 exam where Claimant was ambulatory, had a stiff lower back and tenderness, and could move all extremities and bend his back; a consultative examination in October 2018 where Claimant had slight weakness in the left lower extremity but a normal examination of his back and gait and no suggestion that he had difficulty ambulating; a March 2019 examination showing tenderness but negative straight leg raising, normal 5/5 strength, and a steady gait. (R. 19-20). The ALJ concluded, "The longitudinal record shows he has minimal to mild findings in his lumbar spine.... While these signs may cause some limitation, they have been accommodated by the light exertion with limits to reaching and postural functions." (R. 20). The ALJ therefore adequately discussed Claimant's testimony and how it was inconsistent with the medical and other evidence such that the decision provides a meaningful basis for review.
Second, the ALJ did not err in failing to discuss Dr. Ogunwo's statement on Claimant's application for a parking placard that Claimant cannot walk two hundred feet without stopping to rest. The ALJ is not required to discuss every piece of evidence in the record. See Reidv. Comm 'r of Soc. Sec, 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, the ALJ may not ignore material evidence that conflicts with his decision. Drotar v. Colvin, No. 7:13-CV-265-FL, 2015 WL 965626, at *3 (E.D. N.C. Mar. 4, 2015) (citing Ivey v. Bamhart, 393 F.Supp.2d 387, 390 (E.D. N.C. 2005)). As discussed above, failing to discuss the application for a disability parking placard was not error because it was not a medical opinion and the ALJ otherwise thoroughly discussed the evidence regarding Claimant's ability to stand and walk. See Graham v. Berryhill, No. 7:18-CV-22-FL, 2019 WL 1272545, at *6 (E.D. N.C. Jan. 10, 2019) (finding that the ALJ did not err in failing to address an examination note), adopted by No. 7:18-CV-22-FL, 2019 WL 1270933 (E.D. N.C. Mar. 19, 2019).
Third, Claimant points to a treatment note from October 2, 2017 in support of his argument that the RFC does not provide a substantial basis for meaningful review. Pl's Mem. [DE-25] at 13. The treatment note consists of discharge instructions from the urgent care center, and Dr. Sharifuzzaman instructed Claimant to "avoid lifting heavy things [, ] avoid prolonged standing/walking/jogging/exercise[, ] sleep/rest in firm bed[, ] avoid bending/turning[, and] use back brace as needed/as suggested." (R. 944). The ALJ discussed the October 2017 treatment note and summarized that Claimant "reported back pain and muscle spasms," but "imaging showed only minimal multilevel degenerative disc disease and mild facet arthropathy," and Claimant "was noted to ambulate without assistance." (R. 19, 944-49). The ALJ adequately discussed the October 2017 treatment note and cited it in support of his finding that the record does not support the level of limitation Claimant alleged; accordingly, the ALJ's discussion of the treatment note provides for meaningful review.
Fourth, Claimant references a September 7, 2018 physical therapy appointment at which he was assigned an Oswestry Disability Index of sixty percent. (R. 366-67). "The Oswestry Disability Index is a questionnaire that measures lower back pain [and] involves the patient's perceived level of disability in 10 everyday activities of daily living." Mills v. Union Sec. Ins. Co., 832 F.Supp.2d 587, 591 n.2 (E.D. N.C. 2011). Claimant's score of sixty percent falls at the lower end of the "crippled" category. See Id. However, "the Oswestry Disability Index reflects the patient's self-reported symptoms, not the medical provider's opinion." Reynolds v. Comm 'r of Soc. Sec., No. 4:15-CV-56, 2017 WL 818607, at *12 (W.D. Va. Feb. 6, 2017), adopted by 2017 WL 816151 (W.D. Va. Mar. 1, 2017). In Reynolds, the court found that the ALJ did not err in failing to analyze the score because it "reflects Reynolds's subjective report of his symptoms, which the ALJ properly analyzed elsewhere," and the treatment provider did not indicate that he endorsed the results or concurred with the conclusion. Id. Likewise, here, the score is recorded without explanation or endorsement. (R. 367). The ALJ explained why she found Claimant's statements inconsistent with the medical and other evidence, as discussed above, and the ALJ also noted that in physical therapy in 2018, the "visits do not show significant difficulties from a musculoskeletal standpoint" and "treatment records show he continued t[o] complain of back pain and even went to physical therapy but there were no significant abnormalities on examination." (R. 20, 366-68). Accordingly, the ALJ's decision provides for meaningful review despite the failure to analyze the sixty percent Oswestry Disability Index score.
Fifth, Claimant cites his one hundred percent VA disability rating in support of his argument that the decision does not provide for meaningful review. Pl's Mem. [DE-25] at 13. (R. 438-40). In Bird v. Commissioner of Social Security Administration, the Fourth Circuit noted that "both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability." 699 F.3d 337, 343 (4th Cir. 2012) (citation omitted). "Thus, ... in making a disability determination, the SSA must give substantial weight to a VA disability rating" unless the record clearly demonstrates that a lesser weight is appropriate. Id. ("[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability ... an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.").
The ALJ here discussed Bird and found that "the evidence shows that a deviation from Bird is appropriate." (R. 22). The ALJ found that the VA disability rating "mostly comes from his musculoskeletal impairments including cervical spine abnormalities and radiculopathy, which is not a prominent feature in the record before the SSA." Id. Additionally, the ALJ found that despite the VA rating "which dates back to July 2011, the claimant was able to work as a security guard for several years after that time." Id. In discussing Claimant's musculoskeletal impairments, the ALJ summarized Claimant's March 2017 examination showing normal gait, normal neurological findings, and 5/5 muscle strength; his August 2017 examination showing minimal abnormal findings; his October 2017 examination showing abnormal findings, minimal multilevel degenerative disc disease and mild facet arthropathy; his 2018 visits showing no significant difficulties from a musculoskeletal standpoint; his physical therapy records showing no significant abnormalities on examination; Dr. Brian Carty's 2018 consultative examination where examination of Claimant's back and gait were normal and there was no suggestion he had difficulty ambulating; his January 2019 examination showing 5/5 strength; and his March 2019 examination showing lumbar paraspinal tenderness but negative straight leg raising, normal 5/5 strength, and a steady gait. (R. 19-20). Accordingly, the ALJ sufficiently explained how the record clearly demonstrates that giving less-than-substantial weight to the VA disability rating was appropriate.
In summary, Claimant contends that the ALJ erred in failing to perform a function-by-function analysis of his ability to walk and stand, pointing to the ALJ's analysis of Claimant's testimony, failure to weigh Dr. Dr. Ogunwo's statement on Claimant's application for a parking placard, discussion of the October 2017 treatment note, failure to discuss the Oswestry Disability Index rating, and analysis of the VA disability rating. However, despite any failure to conduct a function-by-function analysis, the ALJ's decision otherwise provides for meaningful review and is supported by substantial evidence. Accordingly, the ALJ did not err.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-24] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-26] be ALLOWED, and the final decision of the Commissioner be UPHELD.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until June 4, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 21 st day of May, 2021.