Opinion
C. A. 1:20-cv-4490-JMC-SVH
08-31-2021
Beverly C., [1] Plaintiff, v. Kilolo Kijakazi, [2] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Disabled Widow Benefits (“DWB”). 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 the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On June 5, 2018, Plaintiff protectively filed applications for DIB and DWB in which she alleged her disability began on May 27, 2017. Tr. at 97, 100, 222-23, 224-25. Her applications were denied initially and upon reconsideration. Tr. at 139-42, 143-46, 149-54, 155-61. On January 23, 2020, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Gregory Wilson. Tr. at 33-70 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 24, 2020, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 12-32. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on December 29, 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 40. She completed two years of college. Id. Her past relevant work (“PRW”) was as a general office clerk and a food service supervisor. Tr. at 61-62. She alleges she has been unable to work since May 27, 2017. Tr. at 222, 225.
2. Medical History
Plaintiff was hospitalized at Mary Black Memorial Hospital (“MBMH”) from July 25 through July 30, 2016, after presenting to the emergency room (“ER”) with complaints of a 90-pound weight loss over the prior six-to-eight months, not eating due to difficulty swallowing, and abdominal pain. Tr. at 387, 388. She was treated for hyperthyroidism, pancreatitis, hypokalemia, nausea, and diffuse abdominal pain. Tr. at 388. She was discharged with a prescription for Methimazole 5 mg for thyroid problems and instructed to follow a low-fat diet. Tr. at 389.
On February 16, 2017, Plaintiff presented to David Brancati, D.O. (“Dr. Brancati”), for right shoulder pain and stiffness and thumb pain that had begun one month prior. Tr. at 920. She reported being unable to raise or move her right arm without significant pain. Id. She denied trauma and indicated her pain was likely related to overuse. Id. Dr. Brancati noted tenderness-to-palpation (“TTP”), limited range of motion (“ROM”) with abduction, inability to cross midline, no obvious deformity, and crepitus, consistent with tendinitis in the right shoulder. Tr. at 922. He observed TTP of the right thumb and limited ROM secondary to pain, consistent with tendinitis in the right thumb. Id. X-rays showed mild degenerative changes. Id. Dr. Brancati assessed acute right shoulder pain and right rotator cuff tendinitis. Tr. at 923. He prescribed Mobic. Id.
Plaintiff presented to the ER at MBMH on February 18, 2017, after having slipped and fallen. Tr. at 411. She complained of pain in her left arm and hip. Id. X-rays of Plaintiff's left shoulder showed mild-to-moderate arthrosis at the acromioclavicular (“AC”) and glenohumeral joints, degenerative changes at the greater tubercle, and some curvilinear calcification in the adjacent soft tissues, but no acute osseous findings. Tr. at 448-49. X-rays of her left hip showed mild osteoarthritis, but no acute fracture or dislocation. Tr. at 450-51. Don L. Abernethy, M.D., noted normal findings on exam, aside from left hip pain. Tr. at 414-15. He discharged Plaintiff with prescriptions for Cyclobenzaprine 5 mg and ibuprofen 800 mg. Tr. at 416.
Plaintiff complained of right shoulder pain and hand numbness on March 16, 2017. Tr. at 916. She described pain that had progressed over several months and weakness and pain that limited her ability to use her right arm. Id. She indicated Mobic had provided no relief. Id. Christian Montagano, D.O. (“Dr. Montagano”), assessed right rotator cuff injury, administered a right-sided intraarticular shoulder injection, prescribed Celebrex 200 mg, ordered magnetic resonance imaging (“MRI”), and referred Plaintiff to physical therapy. Tr. at 919.
On March 22, 2017, an MRI of Plaintiff's right shoulder showed a rim rent tear at the supraspinatus insertion; a partial-thickness bursal surface tear to the infraspinatus tendon; subacromial/subdeltoid bursitis; AC arthropathy with spurring and edema; and generalized atrophy of the rotator cuff. Tr. at 913.
On April 10, 2017, Plaintiff complained of sore throat, congestion, and weakness in her right shoulder. Tr. at 908. Dr. Brancati noted diffuse tenderness of Plaintiff's right shoulder to the superior spine of the right scapula, clavicle, and humerus; no pain with passive ROM; pain with active ROM; limited active ROM of the right shoulder; positive empty can test; negative Hawkins test, Neer's impingement test, and Sulcus sign; and no erythema, ecchymosis, or edema. Tr. at 910. He assessed sore throat, rotator cuff tear, and bursitis of the right shoulder and referred Plaintiff to physical therapy and orthopedic surgery. Tr. at 911.
Plaintiff presented to orthopedic surgeon Michael P. Hoenig (“Dr. Hoenig”) on April 18, 2017. Tr. at 953. She complained of right shoulder pain with overhead reaching and rated her pain as a six on a 10-point scale. Id. Dr. Hoenig noted full ROM, no tenderness, and stability on examination of the left shoulder. Tr. at 956. He observed active forward elevation to 130 degrees, passive forward elevation to 150 degrees, external rotation to 60 degrees, decreased strength in all facets, diffuse TTP, and pain with impingement tests on examination of the right shoulder. Id. He assessed partial rotator cuff tear of the right shoulder and incomplete rotator cuff tear or rupture, not specified as traumatic. Id. He ordered a right shoulder injection, prescribed a Medrol Dosepak and Mobic, restricted Plaintiff to no lifting greater than five pounds, and instructed her to continue physical therapy. Id.
Tony DiNicola, M.D. (“Dr. DiNicola”), administered a right glenohumeral intraarticular injection on April 27, 2017. Tr. at 951.
Plaintiff presented to Lopa S. Bhansaly, D.O. (“Dr. Bhansaly”), for right shoulder pain and medication refills on May 3, 2017. Tr. at 511. She complained of difficulty sleeping. Id. Dr. Bhansaly recorded normal findings on exam. Tr. at 513. She increased Methimazole to 10 mg three times a day, refilled Plaintiff's other medications, prescribed Prozac 10 mg for menopausal symptoms and Zanaflex 4 mg for pain, and referred her for a sleep study. Tr. at 514.
Plaintiff presented to Deepak Malhan, M.D. (“Dr. Malhan”), on May 11, 2017. Tr. at 925. She endorsed pain in her bilateral shoulders and left hip due to an injury she sustained at work. Id. On examination of the right shoulder, Dr. Malhan noted tenderness of the supraspinatus, infraspinatus, and subacromial bursa and positive Neer's test. Tr. at 928. He noted antalgic gait and tenderness of the anterior superior iliac spine, ischial tuberosity, adductor muscles, and biceps femoris muscle of the left hip. Id. He prescribed Tramadol 50 mg and referred Plaintiff to an orthopedist. Tr. at 928. Dr. Malhan released Plaintiff with restrictions. See Tr. at 929.
Plaintiff presented to pain management specialist Blake Leche, M.D. (“Dr. Leche”), at Pain Management Associates (“PMA”) on May 12, 2017, Dr. Leche administered bilateral sacroiliac (“SI”) joint injections. Tr. at 509-10. He refilled Zanaflex 4 mg and Oxycodone HCl 10 mg. Tr. at 509.
Plaintiff followed up with Dr. Hoenig for right shoulder pain and complained of right thumb pain on May 16, 2017. Tr. at 622. She rated her pain as a three and indicated the injection Dr. DiNicola administered had provided some relief. Id. She indicated she was participating in physical therapy, performing exercises, and taking Mobic and occasional Tramadol. Id. She described right thumb pain that increased with activity and caused her to drop items. Id. Dr. Hoenig observed decreased forward elevation and external rotation of the right shoulder and mild discomfort with impingement test. Tr. at 624. He noted palpable hypertrophy of the right first carpometacarpal (“CMC”) joint and pain with squeeze test and loading. Id. He assessed osteoarthritis of the CMC joint of the right thumb and partial rotator cuff tear of the right shoulder, administered an injection to the right thumb, instructed Plaintiff to continue home exercises for her right shoulder, and indicated she could work with restrictions of no lifting greater than five pounds. Tr. at 625.
On June 7, 2017, Plaintiff complained of severe swelling of her ankles and legs and moderate-to-severe itching of her legs. Tr. at 501. She admitted the swelling in her legs had worsened since she stopped wearing compression hose due to the weather. Id. Plaintiff's blood pressure was elevated at 153/77 mmHg. Tr. at 502. Dr. Bhansaly observed trace edema to Plaintiff's bilateral lower extremities. Id. She ordered lab studies and encouraged Plaintiff to use compression hose and monitor and record her blood pressure readings. Tr. at 503.
Plaintiff presented to physician assistant Mandi Leche (“PA Leche”) at PMA on June 12, 2017. Tr. at 592. She described pain in her low back that radiated through her right lower extremity and into her foot and rated it as a six. Id. She noted her most recent injection had provided over 70% relief, but her pain had started to return. Id. PA Leche felt that Plaintiff would likely benefit from a spinal cord stimulator (“SCS”) trial. Id. She observed TTP over the right paraspinous muscles and decreased sensation to light touch over the L5 dermatome. Tr. at 593-94. She assessed lumbar radiculopathy, chronic pain syndrome, and high blood pressure and scheduled Plaintiff for a second transforaminal ESI on the right side. Tr. at 592, 594-95. She prescribed Gabapentin 300 mg, Oxycodone HCl 10 mg, Norco 5-325 mg, and Tramadol HCl 50 mg. Tr. at 595.
On June 13, 2017, Plaintiff complained of bilateral shoulder pain. Tr. at 627. She reported having injured her right shoulder by lifting heavy dishes in January 2017. Id. She indicated she had subsequently injured her left shoulder and hip and possibly aggravated her right shoulder further when she slipped and fell in February 2017. Id. Dr. Hoenig noted reduced ROM of the bilateral shoulders, pain with rotator cuff testing, pain with impingement maneuvers, and diffuse tenderness over the deltoid. Tr. at 629. He assessed bilateral shoulder pain. Id. He noted Plaintiff needed to return to work at full duty on June 24, 2017, as she could not pay her bills without doing so. Id. He authorized her to return to work without restrictions. Tr. at 631.
Dr. Leche administered a transforaminal epidural steroid injection (“ESI”) at Plaintiff's right L5 level on June 28, 2017. Tr. at 590-91.
Plaintiff followed up with endocrinologist Elaine Marie Sunderlin, M.D. (“Dr. Sunderlin”), on July 6, 2017. Tr. at 599. She reported fatigue and palpitations. Tr. at 600. Dr. Sunderlin noted Plaintiff was late for the visit and had not been compliant with follow up visits and medication refills. Id. She indicated Plaintiff's blood pressure was elevated at 140/80 mmHg and she had a mild fine tremor of outstretched hands. Tr. at 602. She assessed hyperthyroidism due to Graves disease and cautioned Plaintiff that if they could not get her thyroid levels under control, they would need to consider radioactive iodine ablation (“RAIA”). Id.
Plaintiff reported 60% relief from the ESI during a follow up visit on July 13, 2017. Tr. at 586. She endorsed muscle aches, shoulder pain, muscle weakness, hip pain, back pain, swelling in the arms and legs, knee pain, depression, and restless sleep. Id. She requested medication to help her sleep. Id. PA Leche recorded normal findings on exam. Tr. at 587-88. She assessed lumbar radiculopathy, prescribed Ambien 10 mg, and continued Plaintiff's other medications. Tr. at 588.
Plaintiff returned to Dr. Hoenig on July 18, 2017. Tr. at 632. She rated bilateral shoulder pain as a six. Id. Dr. Hoenig observed reduced ROM of the bilateral shoulders, pain with resisted forward elevation and external rotation, pain with impingement maneuvers, and tenderness about the deltoid and anterior aspect of the shoulders. Tr. at 634. He ordered bilateral shoulder injections, instructed Plaintiff to follow up in four to six weeks, and authorized her to remain out of work until August 18, 2017. Tr. at 634, 636.
Plaintiff complained of low back pain that radiated to her right hip and leg on August 3, 2017. Tr. at 582. She described her pain as burning, stabbing, aching, and tingling. Id. She reported 50% relief from the right transforaminal ESI she received on June 28. Id. PA Leche noted TTP and decreased ROM of the lumbar and cervical spine. Tr. at 583-84. She continued Plaintiff's medications. Tr. at 585.
Dr. DiNicola administered glenohumeral intraarticular injections to Plaintiff's bilateral shoulders on August 8, 2017. Tr. at 637.
Plaintiff followed up with physician assistant Leslie A. Rumbaut (“PA Rumbaut”) for medication refills on August 16, 2017. Tr. at 496. She reported her anxiety was controlled with Buspar and Prozac. Id. She indicated she was taking Ambien for insomnia, but sought other medication due to associated headaches. Id. PA Rumbaut recorded normal exam findings, aside from obesity. Tr. at 497-98. She noted Plaintiff's blood pressure was abnormal. Tr. at 498. She replaced Ambien with Trazodone for insomnia, referred Plaintiff for a mammogram and a colonoscopy, ordered lab studies, and refilled Amlodipine and Hydrochlorothiazide for hypertension and Buspar and Prozac for anxiety. Tr. at 499.
On August 29, 2017, Plaintiff complained of bilateral shoulder discomfort and limited ROM that was worse on the right than the left. Tr. at 638. She rated her pain as a seven, but indicated the injections had provided some relief. Id. Dr. Hoenig observed Plaintiff to be anxious and depressed, to have decreased ROM of the bilateral shoulders, to have pain with resisted maneuvers and impingement testing, and to be diffusely tender about the bilateral deltoids. Tr. at 640. He noted Plaintiff's financial situation required she “return to some sort of work” and indicated he would “allow her to work full duty as tolerated.” Tr. at 641. He prescribed Ultram 50 mg and authorized Plaintiff to return to work without restrictions on August 29. Tr. at 641, 642.
Plaintiff returned to PA Rumbaut to review lab studies on August 30, 2017. Tr. at 492. PA Rumbaut noted Plaintiff's hemoglobin A1C was 6.2% during her prior visit. Id. She indicated Plaintiff had been taking oral steroids intermittently over the last several months and had received treatment for thyroidtoxicosis. Id. Plaintiff admitted to moderate-to-poor diet and recent weight gain. Id. PA Rumbaut recorded normal findings on exam. Tr. at 493-94. She assessed pre-diabetes and reaction to Prednisone. Tr. at 494.
On September 7, 2017, Plaintiff described low back pain that radiated into her bilateral buttocks and rated it as an eight. Tr. at 578. She complained her pain was interfering with sleep and activities of daily living (“ADLs”) and was worsened by standing, performing household chores, and sitting for extended periods. Id. Dr. Leche noted 4/5 strength in the bilateral extensor hallucis longus muscles and decreased sensation along the distal L5 dermatome. Tr. at 580. He refilled Oxycodone 10 mg, Gabapentin 300 mg, and Tizanidine 4 mg. Id.
Plaintiff followed up with Dr. Sunderlin for treatment of Graves disease on September 19, 2017. Tr. at 603. She was taking 30 mg of Methimazole once a day and reported feeling “good.” Id. She had gained 14 pounds since the prior visit and continued to endorse fatigue and insomnia. Tr. at 603-04. Dr. Sunderlin recorded normal findings on physical exam. Tr. at 606. She assessed hyperthyroidism consistent with Graves disease. Id. She ordered thyroid function studies and indicated she would adjust Plaintiff's medication, if necessary, based on the results. Id.
Dr. Leche administered bilateral transforaminal ESIs at Plaintiff's L5 level on September 25, 2017. Tr. at 576-77.
Plaintiff reported engaging in home exercises and stretching with Theraband during a visit on October 3, 2017. Tr. at 644. She rated her pain as a six. Id. She stated she was no longer working. Id. Dr. Hoenig observed reduced ROM of the bilateral shoulders and discomfort with resisted maneuvers and impingement test. Tr. at 646. He stated Plaintiff had improved since the prior visit and was making progress with ROM, pain, and ADLs. Id.
Plaintiff reported 60% relief from the transforaminal ESI during a follow up visit on October 5, 2017. Tr. at 572. She requested that Oxycodone, Gabapentin, and Tizanidine be refilled. Id. She described pain that radiated to her bilateral lower extremities, but indicated it had improved. Id. PA Leche authorized a two-month refill for Plaintiff's medications. Id.
Plaintiff presented for medication refills on November 30, 2017. Tr. at 482. She indicated she was compliant with her medication and denied complaints. Id. Nurse practitioner Amy Garner (“NP Garner”) recorded normal findings on exam, aside from sinus tenderness. Tr. at 483-84. Plaintiff reported increased stress, but expected her stress level to decrease over the coming weeks. Tr. at 484. NP Garner refilled Prozac and Buspar for major depressive disorder (“MDD”) and anxiety, administered a Dexamethasone intramuscular injection for acute sinusitis, and irrigated Plaintiff's ear canals. Id.
On December 7, 2017, Plaintiff described pain in her low back and right hip she rated as a seven. Tr. at 570. She indicated her pain was limiting her activity. Id. She noted she had received minimal or transient relief from ESIs and minimal improvement from physical therapy and medications, which had included narcotics and anti-inflammatory drugs. Id. PA Leche indicated Plaintiff was a good candidate for a spinal cord stimulator (“SCS”) trial. Id. She observed TTP and decreased ROM of the lumbar and cervical spine. Tr. at 570-71. She refilled Plaintiff's medications and ordered a psychological evaluation for possible SCS trial. Tr. at 571.
On December 12, 2017, Plaintiff complained of bilateral shoulder pain that radiated to her fingers. Tr. at 648. She indicated her shoulder pain increased with activity and use, particularly with extending her arms overhead or away from her body. Id. She rated her pain as a six. Id. Dr. Hoenig observed limited forward elevation and external rotation of the bilateral shoulders, diffuse TTP of the deltoids, pain with rotator cuff testing, tenderness around the elbow and forearm, and greater weakness on the left than the right. Tr. at 650. He assessed bilateral shoulder pain and ordered an MRI of the left shoulder. Id.
Plaintiff rated low back as a seven in severity on January 4, 2018. Tr. at 568. PA Leche noted TTP and decreased ROM in the lumbar and cervical spine. Id. She started Movantik 25 mg and refilled Tizanidine HCl 4 mg, Oxycodone HCl 10 mg, and Gabapentin 300 mg. Tr. at 569.
On February 6, 2018, Plaintiff reported her back pain was worsened by lifting, standing for long periods, and bending forward or backward. Tr. at 565. She described her pain as radiating to her right leg and interfering with sleep and work. Id. She rated it as a six. Id. PA Leche recorded TTP and decreased ROM of the lumbar and cervical spine. Tr. at 566. She refilled Oxycodone 10 mg, Gabapentin 300 mg, Movantik 25 mg, and Tizanidine 4 mg. Id.
On February 11, 2018, Plaintiff presented to licensed professional counselor Sandra C. Lawson (“Counselor Lawson”) for a psychosocial assessment to determine if she was a candidate for implantation of an SCS. Tr. at 718-24. She indicated she had been out of work since May 2017 due to a back injury. Tr. at 718. She endorsed a history of anxiety and depression with mild symptoms. Tr. at 719-20. She noted a history of bereavement following her husband's death in 2010 and stress related to pain and financial difficulties. Tr. at 720. Counselor Lawson described Plaintiff as alert, well-groomed, maintaining good eye contact, demonstrating normal speech, and having normal mood/affect, cooperative attitude, intact thought process, normal thought content, no hallucinations or delusions, and normal impulse control. Tr. at 722-23. Plaintiff reported she coped with stressful situations by praying, crying, talking to her oldest daughter, and hibernating in her bedroom. Tr. at 723-24. Counselor Lawson indicated Plaintiff's reported symptoms were consistent with mild depression. Tr. at 724. She stated a screening tool for posttraumatic stress disorder was negative. Id. She considered Plaintiff to be at low risk for opioid abuse and a good candidate for SCS implantation. Id.
Plaintiff sought medication refills and denied complaints, aside from worsening near vision, on February 21, 2018. Tr. at 478. Physician assistant Elijah G. Wells recorded normal findings on exam. Tr. at 479-80. He refilled Plaintiff's medications and referred her to an ophthalmologist. Tr. at 481.
On March 6, 2018, an MRI of Plaintiff's left shoulder revealed a complete tear of the supraspinatus tendon, a partial thickness tear versus strain of the infraspinatus tendon, and AC joint hypertrophy with inferior spurring causing impingement. Tr. at 446-47.
On March 13, 2018, Plaintiff rated her back pain as a seven and described aching, numbness, stabbing, and throbbing pain that was worsened by bending forward and backward, twisting, sleeping, and shopping. Tr. at 563. She indicated her pain interfered with work and sleep and radiated to her right leg. Id. She complained her pain medication caused constipation and Zanaflex made her feel too sleepy. Id. PA Leche observed TTP over the lumbar spine, pain with ROM, severely limited lumbar flexion and extension, and decreased cervical ROM. Tr. at 563-64. She prescribed Baclofen and continued Gabapentin, Movantik, and Oxycodone. Tr. at 563, 564. She noted Plaintiff was not a surgical candidate because she had minimal chance of improvement. Tr. at 563. She indicated she was waiting for Plaintiff's insurance provider to authorize an SCS. Id.
Optometrist J. Steve McPhail assessed mild nuclear sclerotic cataracts (“NSC”) and retinal degeneration of the bilateral eyes on March 22, 2018. Tr. at 539. He noted early cataracts were not significantly affecting Plaintiff's vision or ability to perform desired activities and instructed her to follow up in one to two years. Tr. at 539-40.
On April 11, 2018, Plaintiff reported her medication was working well and denied side effects. Tr. at 562. PA Leche refilled Oxycodone 10 mg. Id.
Plaintiff followed up with Dr. Sunderlin on May 1, 2018. Tr. at 606. She reported she had stopped Methimazole due to fatigue, swelling, and confusion as to the appropriate dose. Tr. at 607. She endorsed palpitations and insomnia. Id. Dr. Sunderlin recorded normal findings on physical exam. Tr. at 610. She instructed Plaintiff to restart Methimazole at 15 mg daily. Id.
Plaintiff returned to Dr. McPhail for blurred vision on May 7, 2018. Tr. at 536. He assessed NSC, myopia, retinal degeneration, and presbyopia in the bilateral eyes and prescribed new glasses. Tr. at 537.
Plaintiff presented to PA Leche to discuss the insurance company's denial of an SCS on May 16, 2018. Tr. at 560. Plaintiff had TTP over the cervical and lumbar spine, limited flexion and extension of the lumbar spine due to pain, 4/5 bilateral lower extremity strength, and decreased distal sensation along the L5 dermatome. Id. PA Leche assessed lumbar radiculopathy, continued Plaintiff's medications, and scheduled her for right L4-5 and L5-S1 transforaminal ESIs. Tr. at 561.
On May 21, 2018, Plaintiff reported bilateral shoulder pain with significant left shoulder pain that caused difficulty sleeping. Tr. at 654. She described fairly-constant pain in the deltoid and back of the left shoulder. Id. She rated her pain as a seven, despite taking four Oxycodone per day. Id. Dr. Hoenig noted the workers' compensation carrier had authorized coverage for the left shoulder, but denied coverage for the right shoulder. Id. He observed decreased internal rotation, weak cuff strength in all facets, pain with impingement, and diffuse tenderness in the deltoid and clavicle on examination of the right shoulder. Tr. at 656. He noted decreased ROM, weakness in all facets, and diffuse tenderness over the clavicle, AC joint, and deltoid on the left. Id. He assessed left shoulder rotator cuff tear and planned to proceed with arthroscopic surgery with decompression, distal clavicle resection, and rotator cuff repair. Tr. at 657. Dr. Hoenig restricted Plaintiff to “light duty” work with no use of the left upper extremity. Tr. at 653.
On May 31, 2018, Plaintiff followed up with Edward J. Mea, D.O. (“Dr. Mea”), for hyperthyroidism. Tr. at 546. She was concerned as to her thyroid, noting her dose of Methimazole had been decreased to one-and-a-half pills daily. Id. She complained that Trazodone did not help her insomnia, but noted Zolpidem had previously helped. Id. Dr. Mea observed trace edema in the bilateral ankles. Tr. at 547. He ordered thyroid lab studies, prescribed Zolpidem 10 mg for insomnia, and continued Plaintiff's other medications. Id.
Plaintiff returned to PMA and rated her pain as a seven on June 19, 2018. Tr. at 558. She reported her medication was helpful, but not as effective as it had previously been. Tr. at 558-59. Physician assistant Carlee Bright (“PA Bright”) authorized refills of Oxycodone HCl 10 mg and Baclofen 10 mg, prescribed Celebrex 200 mg, and ordered x-rays of the lumbar spine and nerve conduction velocity/electromyography (“NCV/EMG”) testing of the lower extremities. Tr.at 557.
On June 28, 2018, Dr. Hoenig administered a cortisone injection to the CMC of Plaintiff's right thumb and performed left shoulder arthroscopy with extensive debridement and biceps tenotomy, subacromial decompression, distal clavicle resection, and rotator cuff repair. Tr. at 658-59.
Plaintiff presented for postoperative follow up on July 2, 2018. Tr. At 660. She rated her pain as a seven and indicated she was using a transcutaneous electrical nerve stimulation (“TENS”) unit and ice. Id. Physical therapist Laura Robson (“PT Robson”) removed Plaintiff's dressing, placed band-aids over her wound sites, and assessed her passive ROM. Tr. At 661. Plaintiff returned for physical therapy sessions on July 9, 11, 16, 23, 27, and 30, August 1, 8, 13, 20, 22, and 27, September 24 and 26, October 1, 4, and 8, and November 16, 28, and 30, 2018. Tr. at 663-64, 670-75, 680-92, 698-704, 975-80, 986-93, 999-1000.
Plaintiff returned to Dr. Hoenig on July 10, 2018. Tr. at 666. She complained of increased right shoulder pain and rated her pain as a six. Id. Dr. Hoenig noted no problems at the incision site. Tr. at 668. He instructed Plaintiff to continue physical therapy for the left shoulder, ordered an injection to the subacromial space in her right shoulder, and authorized her to remain out of work. Tr. at 665, 668.
Plaintiff returned to PMA and complained of pain in her low back and bilateral hips and shoulders on July 17, 2018. Tr. at 555. She rated her pain as a 10 without medication and a four with medication. Id. Pain management specialist Richmond P. Allan (“Dr. Allan”) noted some inconsistency as to Plaintiff's urine drug screen. Id. He observed Plaintiff's left arm was in a sling. Tr. at 556. He noted lumbosacral tenderness, knee crepitus, antalgic gait, and trace pitting edema of the lower extremities. Id. He refilled Oxycodone HCl 10 mg. Tr. at 555.
On July 18, 2018, Plaintiff presented to nurse practitioner Kim Anne Pickett (“NP Pickett”) for follow-up as to Graves disease. Tr. at 610. She reported compliance with Methimazole 15 mg daily. Tr. at 611. NP Pickett recorded normal findings on physical exam, except that Plaintiff's left arm was in a sling due to surgery. Tr. at 612-13. She continued Methimazole 15 mg daily. Tr. at 613.
On August 3, 2018, Plaintiff complained of a three-week history of gasping for breath upon waking. Tr. at 786. She reported grogginess throughout the day and taking one to two naps for 30 minutes to an hour at a time. Id. She denied anxiety symptoms. Tr. at 788. Dr. Mea observed Plaintiff's left arm to be in a sling and noted trace edema of her bilateral lower extremities. Tr. at 787. He referred Plaintiff to a sleep physician, continued her medications, and ordered Cologuard for colorectal screening, thyroid lab studies, and a lipid panel. Tr. at 788.
On August 14, 2018, Plaintiff reported the injection had provided 80% relief to her right shoulder, but was beginning to wear off. Tr. at 694. She rated her pain as a five. Id. Dr. Hoenig instructed Plaintiff to continue physical therapy and home exercises and to remain out of work pending a recheck in six weeks. Tr. at 696.
David S. Rogers, M.D., performed EMG/NCV testing of Plaintiff's lower extremities on August 15, 2018. Tr. at 727-35. The tests produced normal results. Tr. at 727.
Plaintiff complained of low back pain on August 21, 2018. Tr. at 715. PA Bright assessed low back pain, radiculopathy of the lumbar region, shoulder pain, drug-induced constipation, and chronic pain disorder. Id. She noted Plaintiff had tenderness and limited ROM of the lumbar spine and ordered x-rays. Id. She prescribed Celebrex for shoulder pain and Relistor for constipation and refilled Oxycodone. Tr. at 715-16.
On August 21, 2018, x-rays of the lumber spine showed moderate disc space narrowing at ¶ 5-S1, bilateral facet arthrosis at the lower two levels with 10 mm anterolisthesis of L4, and osteoarthritis of the SI joints. Tr. at 736.
Plaintiff rated her pain as an eight on September 20, 2018. Tr. at 712. PA Bright reviewed EMG/NCV testing of the bilateral lower extremities and indicated the findings were normal. Id. She recorded normal findings on physical exam. Tr. at 713. She prescribed a Medrol Dosepak for lumbar radiculopathy and refilled Plaintiff's other medications. Tr. at 712-13.
On September 25, 2018, Plaintiff reported great progress with physical therapy and endorsed only minor left shoulder pain. Tr. at 994. She indicated her right shoulder was “doing somewhat well, ” with good and bad days. Id. She noted she was down to two Oxycodone per day and was trying to wean off them. Id. Dr. Hoenig recorded right shoulder ROM to 160 and 30 degrees and left shoulder ROM to 150 and 30 degrees. Tr. at 996. He acknowledged pain with impingement maneuvers and rotator cuff testing on the right. Id. He restricted Plaintiff to light duty work with no overhead lifting, no lifting greater than one pound from floor to waist, and no lifting greater than one pound from waist to shoulder. Tr. at 997, 998.
State agency psychological consultant Silvie Ward, Ph.D. (“Dr. Ward”), reviewed the record and considered Listing 12.06 for anxiety and obsessive-compulsive disorders on September 27, 2018. Tr. at 76-77, 89-90. She concluded Plaintiff's mental impairment was non-severe, after assessing mild limitations in concentrating, persisting, or maintaining pace and adapting or managing oneself and no limitations in interacting with others and understanding, remembering, or applying information. Id. On May 16, 2019, a second state agency psychological consultant, Derek O'Brien, M.D. (“Dr. O'Brien”), affirmed Dr. Ward's findings. Compare Tr. at 76-77 and 89-90, with Tr. at 110-11 and 128-30.
Plaintiff returned for pain management follow up on October 18, 2018. Tr. at 710. She complained of low back and right hip and leg pain. Id. Dr. Allan refilled Oxycodone, Baclofen, Celebrex, and Gabapentin. Id.
On November 12, 2018, Plaintiff reported making slow progress with physical therapy and noted a dull ache with intermittent increases in left shoulder pain. Tr. at 981. She said her right shoulder pain was tolerable and worse on some days. Id. She indicated she continued to take two Oxycodone per day. Id. Dr. Hoenig observed active forward elevation of the left shoulder to 150 degrees with external rotation to 40 degrees and internal rotation to the back pocket. Tr. at 983. He indicated Plaintiff's strength was improving, but she had a little bit of discomfort on extremes of motion and with resisted maneuvers. Id. He recorded right shoulder ROM to 160 degrees of forward elevation, 30 degrees of external rotation, and internal rotation to the side. Id. He again noted mild discomfort with impingement maneuvers and resisted testing. Id. He prescribed a Medrol Dosepak to address Plaintiff's stiffness, instructed her to continue physical therapy, and restricted her to no lifting greater than five pounds from waist to shoulder and no overhead lifting. Tr. at 984.
Plaintiff followed up with Dr. Allan for pain management on November 15, 2018. Tr. at 967. She rated her pain as a seven and described it as sharp, aching, numb, stabbing, and throbbing. Id. She noted it was decreased by rest and exacerbated by bending, squatting, and performing household chores. Id. She indicated her pain radiated to her right leg and interfered with her abilities to sleep and engage in ADLs. Id. Dr. Allen assessed low back pain and refilled Oxycodone, Baclofen, Celebrex, and Gabapentin. Id.
Plaintiff complained of depression and insomnia on November 29, 2018. Tr. at 802. She reported she was experiencing increased difficulty dealing with the anniversary of her husband's death, desired to be alone, and had difficulty getting out of the house. Tr. at 803. She reported having been on Prozac for years, as it was prescribed following her husband's death. Id. She indicated she was out of Buspar for anxiety, but her anxiety was not as concerning as her depression. Id. She indicated she was taking Oxycodone 10 mg two to three times a day, but desired to stop pain management treatment and discontinue opiate pain medication. Id. Katherine Mitchum Spinks, M.D. (“Dr. Spinks”), recorded normal findings on exam, aside from depressed mood. Tr. at 810. She assessed chronic right-sided low back pain with right- sided sciatica, anxiety, insomnia, hypertension, allergic rhinitis, MDD, and hyperthyroidism. Tr. at 811. She referred Plaintiff to a new pain management specialist, ordered lab studies, added Wellbutrin for MDD, and continued other medications for hypertension, insomnia, and depression. Tr. at 812.
On December 3, 2018, Plaintiff presented to pulmonologist Armin Meyer, M.D. (“Dr. Meyer”), for evaluation of snoring. Tr. at 1018. Dr. Meyer noted Plaintiff likely had sleep apnea and assessed snoring, fatigue, hypertension, anxiety, MDD, insomnia, and obesity. Tr. at 1017. He observed that Plaintiff had significant insomnia with anxiety and depression contributing. Id. He discussed driving precautions, provided nutrition counseling, and ordered a sleep study and trial of continuous positive airway pressure (“CPAP”). Id.
On December 11, 2018, Plaintiff reported occasional left shoulder soreness and good progress with her right shoulder causing no real pain, but occasional cramping in her arms and tension in her right hand. Tr. at 971. She rated her pain as a five. Id. Dr. Hoenig noted examination of both shoulders showed near full ROM, good strength, no crepitus, no pain with impingement maneuvers, and no TTP. Tr. at 973. He assessed right shoulder pain with partial cuff tear and status post-left shoulder scope and rotator cuff repair. Id. He indicated Plaintiff was at maximum medical improvement for both shoulders with an eight percent impairment rating on the left and a six percent impairment rating on the right. Tr. at 974. He imposed a permanent restriction for no overhead lifting. Tr. at 970, 974.
Physical therapist Steve Ahrens (“PT Ahrens”) discharged Plaintiff from physical therapy on December 19, 2018. Tr. at 968-69. He recorded left shoulder active ROM to 124 degrees for flexion and left shoulder passive ROM to 160 degrees for flexion, 116 degrees for abduction, 76 degrees for internal rotation, and 70 degree for external rotation. Tr. at 968. He noted Plaintiff's left shoulder strength was 4-/5 for flexion, 3+/5 for abduction, 4/5 for internal rotation, and 4/5 for external rotation. Id. PT Ahrens stated Plaintiff had been “consistently poorly compliant” with in-clinic physical therapy and appeared to be poorly compliant with a home exercise program. Tr. at 969. He noted Plaintiff had missed or cancelled many appointments. Id. He stated Plaintiff continued to report moderate pain with relatively easy activities and was mildly weak due to poor rehab compliance and poor effort. Id. He discharged her due to poor compliance. Id.
Plaintiff presented to pain management specialist Edward Swan Delorey, M.D. (“Dr. Delorey”), for consultation on December 27, 2018. Tr. at 822. She complained that her pain caused significant stress and impairment to her life. Tr. at 824. Plaintiff endorsed depressed, helpless, and hopeless mood. Tr. at 825. She described her pain as throbbing, aching, tender, aggravated by lifting and walking, and interfering with sleep, ADLs, and work. Id. She endorsed numbness, weakness, tingling, and muscle spasms. Id. She rated her pain as a five and indicated it had been as high as an eight during the prior month. Id. She admitted physical therapy had provided moderate benefits, but said she had stopped attending due to financial limitations. Tr. at 826. She said ESIs had provided 50% improvement for three to four weeks. Id.
Dr. Delorey observed TTP over the lumbar facets and paraspinal muscles and right greater than left SI joints, positive bilateral facet loading, mildly positive FABER test on the right, mildly positive straight-leg raising (“SLR”) test on the right, and normal ROM, strength, sensation, and reflexes in the lower extremities. Tr. at 830. He assessed lumbar spondylosis, chronic right-sided low back pain with right-sided sciatica, lumbar post-laminectomy syndrome, lumbar degenerative disc disease, sacroiliitis, lumbar paraspinal muscle spasms, and chronic pain syndrome. Tr. at 822. He noted Plaintiff's history, physical exam, and imaging suggested her pain was multifactorial with contribution of facetogenic pain, SI joint dysfunction, and post-laminectomy pain syndrome. Id. He recommended Plaintiff increase physical activity to prevent deconditioning and worsening of the pain cycle, undergo psychological counseling to address the comorbid psychological effects of pain, and use pain medications and interventional procedures judicially to decrease pain and allow her to participate in physical activities. Tr. at 822-23. He refilled Celebrex and Gabapentin, switched Baclofen to Robaxin 500 mg for muscle spasms, and decreased Oxycodone to 5 mg, four times daily as needed in anticipation of transitioning Plaintiff to Butrans patches at her next visit. Tr. at 823. He indicated he would consider prescribing Topamax, Cymbalta, Nortriptyline, or Nucynta in the future. Id. He ordered bilateral L3-4, L4-5, and L5-S1 facet joint injections and indicated he would consider medial branch blocks/radiofrequency ablation. Id. He indicated Plaintiff might benefit from right SI joint injections and an SCS, but acknowledged that Plaintiff's insurance provider had previously denied an SCS. Id.
On January 1, 2019, state agency medical consultant James Taylor, D.O. (“Dr. Taylor”), reviewed the record and assessed Plaintiff's physical residual functional capacity (“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 stoop, kneel, crouch, crawl, and climb ladders/ropes/scaffolds; frequently balance and climb ramps/stairs; occasionally reach overhead with the left upper extremity; and avoid concentrated exposure to hazards. Tr. at 78-81, 91-94. A second state agency medical consultant, Hurley W. Knott, M.D. (“Dr. Knott”), assessed the same physical RFC on May 20, 2019. Compare 78-81 and 91-94, with Tr. at 113- 16 and 131-34.
On January 7, 2019, Plaintiff complained she had developed bilateral tinnitus after starting Wellbutrin. Tr. at 838. She indicated the medication was effective, but she could not tolerate the tinnitus. Id. Nurse practitioner Erica Leigh Gardner (“NP Gardner”) discontinued Wellbutrin and prescribed Buspar. Tr. at 844. She instructed Plaintiff to follow up in one to two weeks. Id.
On January 25, 2019, Plaintiff underwent polysomnography that showed moderate obstructive sleep apnea (“OSA”). Tr. at 742-44. William Healy, M.D. (“Dr. Healy”), recommended CPAP titration to establish optimal treatment parameters and counseling on nutrition, weight loss, proper sleep hygiene, effects of alcohol and medication, and safe management of excessive daytime somnolence. Tr. at 743-44.
Plaintiff followed up with Dr. Delorey on January 28, 2019. Tr. at 848. She rated her pain as a three and indicated the lumbar facet injections she received on January 20 had provided greater than 50% relief of her low back pain. Id. Dr. Delorey prescribed 30 Oxycodone 5 mg tablets for Plaintiff to use as they waited for approval of Butrans patches. Id. He referred Plaintiff to aquatic therapy, continued Robaxin and Celebrex, and indicated he would consider taking Plaintiff off Gabapentin and prescribing Topamax for neuropathic pain and weight loss. Id.
Plaintiff followed up with Dr. Spinks for anxiety, depression, and insomnia on February 7, 2019. Tr. at 863. She reported doing well on Buspar and requested to increase her dose from two to three times a day. Id. Dr. Spinks recorded normal findings on physical exam. Tr. at 865. She continued Plaintiff's medication for hypertension, decreased Ambien to 5 mg, and increased Buspar to three times a day. Tr. at 865-66.
Plaintiff rated her pain as a four and indicated her medication was providing 60-70% relief on February 25, 2019. Tr. at 870. She endorsed episodic pain flares in her low back and buttocks, but indicated they would resolve within a few days. Id. She had lost five pounds and looked forward to starting aquatic therapy. Id. Dr. Delorey noted mild TTP over Plaintiff's bilateral lumbar facets, paraspinal muscles, and right greater than left SI joints, positive bilateral facet loading in the lumbar spine, mildly positive FABER test on the right, mildly positive SLR test on the right, and 5/5 strength, normal ROM, intact sensation, and normal and symmetric reflexes in the bilateral lower extremities. Tr. at 877. He prescribed 10 Oxycodone 5 mg tablets to be used sparingly over the next four weeks, and refilled Celebrex, Gabapentin, Robaxin, and Butrans patches. Tr. at 878.
On March 26, 2019, Plaintiff endorsed slightly-decreased pain, rated her current pain as a four, and reported 75% relief from her pain medication regimen. Tr. at 883. She indicated she had been unable to start aquatic therapy because of a transportation problem. Id. Dr. Delorey observed 5/5 strength, normal and symmetric ROM, intact sensation to light touch, and normal and symmetric reflexes in Plaintiff's bilateral lower extremities. Tr. at 890-91. He noted mild TTP over Plaintiff's bilateral lumbar facets, paraspinal muscles, and right greater than left SI joints, mildly-positive bilateral facet loading in the lumbar spine, mildly-positive FABER test on the right, and mildly-positive SLR test on the right for pain radiating below the knee. Tr. at 891. He refilled Plaintiff's medications. Tr. at 891-92.
On April 29, 2019, Plaintiff reported 60% pain relief with medication and rated her pain as a six. Tr. at 1050. She noted recent skin irritation and rash due to Butrans patches. Id. Dr. Delorey indicated he would change Plaintiff from Butrans patches to Belbuca oral films. Id. He restarted Plaintiff on Gabapentin, as her pain worsened after discontinuing it. Tr. at 1051. He indicated Plaintiff had not taken Oxycodone over several days and he did not intend to continue it. Id. He refilled Celebrex and Robaxin. Tr. at 1059.
Plaintiff returned to Dr. Meyer on May 1, 2019. Tr. at 1003. She reported sleeping and feeling better with use of CPAP, but waking later during the night because her pressure was too high. Tr. at 1008. Dr. Meyer diagnosed OSA with use of CPAP, primary insomnia, and body mass index (“BMI”) between 40.0 and 44.9. Tr. at 1007. He recommended the pressure on Plaintiff's CPAP be lowered. Id.
On May 28, 2019, Plaintiff reported her pain had increased slightly over the prior month. Tr. at 1036. She rated her pain as a four and endorsed 40-50% pain relief with medications. Id. She indicated Belbuca and resumption of Gabapentin had been beneficial. Id. She reported some sedation, but did not feel that it was significant enough to change her treatment. Id. She requested repeat lumbar facet injections. Id. Dr. Delorey refilled Celebrex, Gabapentin, Robaxin, and Belbuca and approved repeat bilateral facet joint injections at ¶ 3-4, L4-5, and L5-S1. Tr. at 1045-46.
On June 27, 2019, Plaintiff indicated her chronic pain was about the same and rated it as a six. Tr. at 1023. She endorsed 50% pain relief from medications. Id. She reported increased stressors related to her sister's illness and her brother's death. Id. Dr. Delorey's medical assistant scheduled Plaintiff for bilateral lumbar facet joint injections on July 12. Tr. at 1024. Dr. Delorey refilled Celebrex, Gabapentin, Robaxin, and Belbuca. Tr. at 1033.
Plaintiff presented to licensed independent social work James Francis Nagi (“SW Nagi”) on September 3, 2019. Tr. at 1001. She desired to treat with a therapist, but was concerned about the cost. Id. She endorsed a history of anxiety and depression and reported she had often isolated and spent most of her time in bed since she had stopped working. Id. SW Nagi assessed anxiety and current moderate episode of MDD. Id.
Plaintiff complained of depression, hyperthyroidism, anxiety, and insomnia on December 20, 2019. Tr. at 1063. She indicated she was struggling with depression and had not left her house in three weeks. Tr. at 1068. She noted multiple members of her family had passed away over the prior year and she feared she was going to be evicted from her home. Id. She said she was rarely using Belbuca and had not followed up for pain management treatment in several months because she did not have transportation to Dr. Delorey's office. Id. She endorsed poor sleep and appetite. Id. Dr. Spinks assessed current moderate episode of MDD, insomnia due to other mental disorder, hypertension, anxiety, hyperthyroidism, and acute non-recurrent maxillary sinusitis. Tr. at 1069-70. She ordered lab studies, increased Wellbutrin to 300 mg, and continued Prozac 40 mg. Tr. at 1070-71. She encouraged Plaintiff to speak to her sister and son about her increased depressive symptoms. Tr. at 1071.
C. The Administrative Proceedings
1. The Administrative Hearing a. Plaintiff's Testimony
At the hearing, Plaintiff testified she lived with her two children, ages 18 and 22. Tr. at 40. She stated she last worked at MBMH on May 27, 2017. Tr. at 41-42. She denied having worked or received unemployment benefits since that date. Tr. at 40. She indicated she filed a claim for workers' compensation and received a $28,000 settlement. Tr. at 40-41. She said she received financial support through her husband's military pension and her children's income. Tr. at 41. She stated her children worked and attended college. Id.
Plaintiff confirmed she had been injured on the job when she slipped and fell, injuring her left hip and shoulder. Tr. at 42. She said she immediately visited the ER and subsequently went to occupational health and to her doctor. Id. She testified she had rotator cuff tears in both shoulders, depression, anxiety, back and hip pain, and nerve pain that radiated down both of her legs. Tr. at 42-43. She indicated Graves disease caused her to often feel tired and have blurred vision, heart palpitations, and swelling in her ankles and feet. Tr. at 43. She stated problems with her shoulders prevented her from lifting, fixing her hair, getting out of the bathtub, and performing household chores. Tr. at 44. She denied being able to sweep the floor or reach overhead to retrieve items. Tr. at 44-45.
Plaintiff admitted she had a valid driver's license without restrictions. Tr. at 43-44. However, she said she did not drive because of vision problems, difficulty holding the steering wheel, and anxiety. Tr. at 45-46. She indicated her right hand and thumb would “tense[] up” if she held them in the same position for too long and nerve pain radiated down her arm and into her hand. Tr. at 46. She confirmed she was right-handed. Id. She said she received injections to treat arthritis in her right thumb. Id. She denied being able to perform fine motor tasks such as fastening zippers and buttons and doing detailed work with her hands. Id. She indicated she could manipulate larger items. Id. She said she wore slip-on clothing due to these problems. Tr. at 47.
Plaintiff testified her anxiety was increased such that it was hard for her to concentrate. Id. She expressed reluctance to drive because she had delayed ability to react due to her physical problems. Id. She said she could not turn her head and used the car's mirrors to view things to her rear. Id. She denied being able to shop for groceries because she could not bend down or reach overhead to retrieve items and had difficulty pushing a shopping cart. Tr. at 47-48.
Plaintiff estimated she could sit comfortably for about 30 minutes. Tr. at 48. She stated that after sitting for 30 minutes, she would need to get up, go lie down, stretch, and put up her feet. Id. She said she alternated between a recliner and her bed during a typical day. Id. She estimated she could likely stand for about 20 minutes prior to experiencing increased pain in her right hip, legs, and back. Id. She indicated she could walk about 50 feet, the distance to her mailbox. Tr. at 49. She denied being able to lift a gallon of milk with either hand. Id. She said she had stiffness and shakiness in her bilateral hands and could make only a light fist. Id. She denied being able to squat, kneel, crouch, crawl, or climb stairs. Tr. at 49-50. She indicated she did not visit her backyard because she could not ascend the deck stairs to get back into her house. Tr. at 50. She denied being able to climb a ladder or bend down to retrieve items she dropped to the ground. Id.
Plaintiff testified her treatment for chronic back pain included pain management with injections every three to four months. Tr. at 51. She indicated her doctor did not believe she would benefit from surgery, but had recommended implantation of an SCS, which her insurance denied. Id. She said she could do very little twisting. Id. She stated she had severe depression and anxiety and had recently been prescribed a new medication for depression. Id.
Plaintiff testified she often stayed in her bed and watched television. Id. She indicated her pain and other symptoms varied, but she had few good days. Tr. at 52. She described her actions on an average day as getting up, drinking a cup of coffee, watching television, and lounging in the recliner. Id. She said her son usually prepared or microwaved meals or picked up food. Id. She indicated her son also did the grocery shopping. Id. She stated she had previously enjoyed gardening, but could no longer do the required lifting, carrying, and bending. Tr. at 53. She said she had discontinued physical therapy because she was not making progress and it was too painful. Id.
Plaintiff stated she had last worked as a food service supervisor. Id. She noted the job required she prepare and plate food and deliver it to hospital patients. Tr. at 54. She estimated she had to lift 25 to 50 pounds. Id. She stated she had previously worked as an associate at Lowe's, where she had to lift heavy items like lawnmowers and cases of oil. Id. She said she worked in patient intake at Columbia Orthopaedic and Neurosurgical Associates, where she helped patients with instructions, cleaned, and did laundry, lifting about 25 pounds. Tr. at 55.
Plaintiff denied using her dishwasher and indicated she used paper plates because she could not lift plates. Tr. at 56. She said she had previously dropped plates and glasses. Id. She denied having been hospitalized for more than 24 hours due to depression or anxiety. Id. She said she had started seeing Dr. Dill around August 2019 for depression. Tr. at 56-57.
Plaintiff testified she was 5'4” tall and weighed 244 pounds. Tr. at 57. She stated her weight caused increased difficulty walking and bending over. Id. She denied having cooked, done laundry, ironed, mopped, vacuumed, taken out the trash, dusted, performed yard work, hunted, fished, sewed, crocheted, traveled outside the state, or cleaned the bathroom, kitchen, or living room since May 2017. Tr. at 57-59. She admitted she had placed glasses and silverware in the dishwasher and folded clothes over that period. Tr. at 57-58. She said she attended online religious services, used Facebook, emailed, performed research on the internet, and did little texting. Tr. at 59. She admitted she had been to stores and restaurants since May 2017. Tr. at 59-60. She denied belonging to any clubs or groups and visiting movie theaters, parks, beaches, or lakes. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Robert E. Brabham, Sr., Ph.D., reviewed the record and testified at the hearing. Tr. at 60-70. The VE categorized Plaintiff's PRW as a general office clerk, Dictionary of Occupational Titles (“DOT”) No. 209.562-010, requiring light exertion per the DOT and up to medium exertion as performed and a specific vocational preparation (“SVP”) of 3, and a food service supervisor, DOT No. 319.137-010, requiring light exertion per the DOT and up to medium exertion as performed and an SVP of 6. Tr. at 61-62. The ALJ asked the VE if Plaintiff had acquired any transferable skills. Tr. at 62. The VE testified the job of general office clerk would have produced transferable skills related to keeping records, receiving payments, making phone calls, dealing with dates, comparing records, researching accounts, and using office equipment. Id. The ALJ asked if those skills were transferable with very little, if any, vocational adjustment. Id. The VE stated they were “[t]o selected fittings.” Id.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift 20 pounds occasionally and 10 pounds frequently; stand for six hours in an eight-hour workday; walk for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; frequently balance and climb ramps and stairs; occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, or scaffolds; occasionally reach overhead; and avoid concentrated exposure to hazards. Tr. at 62-63. The VE testified the hypothetical individual could perform Plaintiff's PRW. Tr. at 64. The ALJ asked whether there were any other jobs in the economy the hypothetical person could perform. Id. The VE identified a light job with an SVP of 3 as a records clerk, DOT No. 206.387-022, with 320, 000 positions in the national economy. Tr. at 64-65. The ALJ asked the VE which skills from Plaintiff's PRW would transfer to such a job. Tr. at 65. The VE testified skills such as dealing with data records, locating information, comparing records, doing background detail work, using basic office equipment and computers, and screening and reviewing records would transfer. Id. The VE further stated Plaintiff would have transferable skills to telephone answering-type jobs. Id. He identified DOT No. 235.462-010, with 80, 000 positions in the national economy. Id. The VE confirmed Plaintiff's skills would transfer to these jobs with little, if any, vocational adjustment in terms of tools, work process, work setting, and industry. Tr. at 65-66.
The ALJ asked the VE if his testimony was consistent with the DOT in accordance with SSR 00-4p. Tr. at 66. The VE stated his testimony was consistent, except the DOT did not specifically address overhead reaching and he had based his testimony as to that factor on his 50 years of experience. Id.
For a second hypothetical question, the ALJ described an individual of Plaintiff's vocational profile who was limited to simple, routine, repetitive work on a sustained basis, eight hours a day, five days a week, in two-hour increments, and with normal breaks. Id. He further specified the job would require frequent judgment and occasional decision making. Id. He asked if such an individual could perform Plaintiff's PRW. Id. The VE testified the individual would be unable to perform Plaintiff's PRW, as it was not simple. Tr. at 67. The ALJ asked if there would be other work available for the described individual. Id. The VE identified light jobs as an assembler/fabricator, DOT No. 739.687-078, and a hand packer, DOT No. 789.687-066, with 360, 000 and 400, 000 positions available in the national economy, respectively. Tr. at 67-68.
The ALJ asked the VE if his testimony as to those jobs was consistent with the DOT in accordance with SSR 00-4p. Tr. at 68. The VE again clarified that his testimony as to overhead reaching was based on his experience, as overhead reaching was not specifically addressed in the DOT. Id.
For a third hypothetical questions, the ALJ described an individual of Plaintiff's vocational profile who would be limited as described in the second hypothetical and would be absent from the workstation on a daily basis, the duration of which would be at the discretion of the hypothetical individual. Id. He asked if the additional restriction would affect the VE's response. Tr. at 69. The VE stated it would because the restriction would eliminate the individual from engaging in gainful employment. Id. He explained that such absences were not addressed in the DOT, but his testimony as to their effect was based on his experience. Id.
Plaintiff's attorney asked the VE to consider the individual described in the first and second hypothetical questions and to further assume the individual would only be able to use her hands on an occasional basis. Id. The VE testified the individual would be unable to perform the jobs if use of her hands were limited as described. Tr. at 69-70. 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 June 30, 2018.
2. It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirements for disabled widow's benefits as set forth in section 202(e) of the Social Security Act.
3. The prescribed period ends on July 31, 2024.
4. The claimant has not engaged in substantial gainful activity since May 27, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
5. The claimant has the following severe impairments: left and right shoulder rotator cuff tear; lumbar degenerative disc disease; obstructive sleep apnea and obesity (20 CFR 404.1520(c)).
6. 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).
7. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except occasionally climb ropes/ladders/scaffolds; frequently balance and climb ramps/ steps, occasionally stoop, kneel, crouch or crawl. She can occasionally reach overhead and must avoid concentrated exposure to hazards.
8. The claimant is capable of performing past relevant work as a General Office Clerk, DOT # 209.562-010, light/SVP 3. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
9. The claimant has not been under a disability, as defined in the Social Security Act, from May 27, 2017, through the date of this decision (20 CFR 404.1520(f)).Tr. at 17-27.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to properly evaluate Plaintiff's subjective allegations as to the limiting effects of her pain;
2) the ALJ did not properly account for the medical opinions in assessing an RFC for light work;
3) the ALJ erred in assessing Plaintiff's RFC; and
4) the ALJ neglected to adequately consider the functional limitations imposed by Plaintiff's mental impairments.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. 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 the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that 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. Subjective Allegations
Plaintiff argues substantial evidence does not support the ALJ's evaluation of her subjective allegations. [ECF No. 15 at 20]. She maintains the ALJ gave few reasons for discounting her testimony as to the intensity, persistence, and limiting effect of her symptoms. Id. at 26. She contends he ignored her reports to her medical providers during office visits. Id. at 26-27. She claims the ALJ failed to provide specific reasons for rejecting her subjective allegations. Id. at 27. She contends the ALJ cherrypicked evidence to support his conclusion and failed to specify which of her statements he credited and discredited. Id. at 31.
Plaintiff argues “[s]ubstantial evidence does not support the Administrative Law Judge's credibility determination.” [ECF No. 15 at 20]. The undersigned construes this as an argument that the ALJ did not properly evaluate Plaintiff's subjective allegations, as SSR 16-3p rescinds SSR 96-7p: Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements. Pursuant to SSR 16-3p, ALJs are not to evaluate a claimant's credibility, but to determine whether the record supports her allegations as to the intensity and persistence of her symptoms.
The Commissioner argues substantial evidence supports the ALJ's conclusion that Plaintiff's extreme allegations as to her physical abilities were inconsistent with the record. [ECF No. 17 at 16]. She maintains the ALJ explained that Plaintiff's allegations that her shoulder impairments caused difficulty lifting any weight were inconsistent with her treatment and examinations, including evidence that her pain and ROM improved with injections and she did well after left rotator cuff repair surgery; her doctor's reports that her right shoulder caused her no real pain, her left shoulder caused her only occasional soreness, and she had normal strength and normal ROM of the shoulders; and her doctor's removal of all restrictions, except for overhead lifting. Id. at 18-19. She contends the ALJ explained that Plaintiff's allegation that her back pain caused her to only be able to walk 50 feet was inconsistent with findings of normal strength, ROM, and gait; good response to injections; and reports that symptoms improved, despite decreased doses of pain medication. Id. at 19.
“[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). If the ALJ concludes the claimant's impairments could reasonably produce the symptoms she alleges, he shall proceed to the second step. Id. At the second step, the ALJ is required to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit [her] ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)). He must “evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6 (2016). His consideration of the claimant's symptoms cannot be “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” Id. at *4; see also Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 98 (4th Cir. 2020) (“We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.”).
In addition to medical evidence, ALJs are to consider other evidence as to the intensity, persistence, and limiting effects of a claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *5 (2016); 20 C.F.R. § 404.1529(c). “Other evidence that we will consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in our regulations.” Id. ALJs must consider factors relevant to the claimant's symptoms, including evidence of daily activities; the location, duration, frequency, and intensity of pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of the claimant's medications; any measures the claimant uses or has used to relieve pain or other symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3). They are required to determine “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.” 20 C.F.R. § 404.1529(c)(4).
The ALJ found Plaintiff's medically-determinable impairments could reasonably be expected to cause her alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. at 22.
The ALJ rejected Plaintiff's allegations as to functional limitations imposed by bilateral shoulder pain, acknowledging her work-related injuries and abnormal findings on MRI of the right and left shoulders, but noting only slightly-reduced ROM, adequate strength, and a release to full duty as tolerated in August 2017. Id. He referenced improvement in symptoms following injections. Id. He acknowledged that Plaintiff had undergone arthroscopic decompression, debridement, and rotator cuff repair on the left in June 2018. Id. He cited Plaintiff's reports that she was doing well overall, had good pain response to cortisone injection, and was progressing well with physical therapy. Id. (citing Ex 10F/15). He indicated Plaintiff had reached maximum medical improvement as to her bilateral shoulders by December 2018 and was released with a restriction for no overhead lifting. Id.
The ALJ rejected Plaintiff's allegations as to the intensity, persistence, and limiting effects of low back and hip pain. Tr. at 23. He acknowledged Plaintiff's history of partial discectomy and right laminectomy at ¶ 5-S1 in 1993, but noted a November 2010 MRI showed “only mild degenerative changes [at] ¶ 4/5 with no focal disc herniation or recurrent herniation (Exs 16F/2 and 15F/43)” and an April 2016 MRI showed “post-operative changes consistent with prior surgery at ¶ 5/S1 without residual central or neuroforaminal compromise and advanced facet arthropathy at ¶ 4/5 with mild stenosis with no neuroforaminal narrowing (Ex 15F/44).” Id. He referenced Plaintiff's reports of chronic low back pain that radiated to her lower extremities. Id. However, he noted pain management records only showed tenderness in the right paraspinal muscles and restriction in flexion, and reflected 5/5 strength in the lower extremities with full ROM of all joints and no limitations in gait and station. Id. He indicated Plaintiff had reported significant improvement in pain in January 2019, following facet injections, and physical exam findings were unremarkable. Id. He referenced Plaintiff's reports of improvement in February and March 2019 and generally normal exam findings, despite a reduction in her narcotic pain medication dose. Id. He stated x-rays of Plaintiff's hips showed mild degenerative changes, but no other significant findings and the record showed normal gait and full ROM of the lower extremities. Id.
The ALJ rejected Plaintiff's allegations as to functional limitations imposed by sleep apnea, noting “while the claimant was recently diagnosed with this condition (Ex 24F), it is expected that it can be appropriately treated with use of prescribed CPAP and the record is void of any instances of daytime somnolence or changes in cognitive functioning (Exs 15F, 25F and 26F). Id.
The ALJ rejected Plaintiff's allegations as to the functional limitations imposed by her impairments without discussing her specific allegations or providing reasons as to why each was not supported by the record. See Tr. at 21-23. He stated Plaintiff “alleges she is unable to work because of chronic bilateral shoulder and low back pain radiating into her lower extremities, ” Tr. at 22, but did not acknowledge any specific statements from Plaintiff as to her functional limitations. See Id. His evaluation of Plaintiff's subjective symptoms reflects significant cherrypicking of the evidence. “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). The ALJ also neglected to address relevant factors in 20 C.F.R. § 404.1529(c) in evaluating Plaintiff's subjective allegations.
The ALJ referenced Plaintiff's reports of improved symptoms, but ignored other evidence of significant or worsened symptoms, limited ability to perform ADLs, descriptions of pain, specifications of precipitating and aggravating factors, complaints of medication-induced side effects, and comments as to the effectiveness of treatment methods. For example, on September 7, 2017, Plaintiff described low back pain that radiated into her bilateral buttocks as an eight, complained it was interfering with sleep and ADLs, and reported it was worsened by standing, performing household chores, and sitting for extended periods. Tr. at 578. On December 7, 2017, Plaintiff rated pain in her low back and right hip as a seven, indicated it was limiting her activities, and endorsed minimal or transient relief from ESIs, physical therapy, and narcotic and anti-inflammatory pain medications. Tr. at 570. On March 13, 2018, Plaintiff described aching, numbness, stabbing, and throbbing pain that radiated to her right leg; was worsened by bending forward and backward, twisting, sleeping, and shopping; and interfered with work and sleep. Tr. at 563. She complained her pain medication caused constipation and Zanaflex made her feel too sleepy. Id. On May 21, 2018, Plaintiff described bilateral shoulder pain with fairly-constant pain in the deltoid and back of the left shoulder that caused difficulty sleeping. Tr. at 654. She rated the pain as a seven, despite taking four Oxycodone per day. Id. On June 19, 2018, Plaintiff rated her pain as a seven and reported her medication was no longer as effective. Tr. at 558-59. On November 12, 2018, Plaintiff reported making slow progress with physical therapy, noted a dull ache with intermittent increases in left shoulder pain, and indicated her right shoulder pain was tolerable on some days and worse on other days. Tr. at 981. On November 15, 2018, Plaintiff described her back pain as sharp, aching, numb, stabbing, and throbbing and radiating to her right leg; rated it as a seven; and reported it interfered with sleep and ADLs, was decreased by rest, and was worsened by bending, squatting, and performing household chores. Tr. at 967. On December 27, 2018, Plaintiff described her back pain as throbbing, aching, tender, aggravated by lifting and walking, and interfering with sleep, ADLs, and work. Tr. at 825. She indicated physical therapy had been moderately beneficial when she had been able to afford it and ESIs had provided three to four weeks of relief. Tr. at 826.
Substantial evidence does not support the ALJ's conclusion that Plaintiff's statements as to the intensity, persistence, and limiting effects of her symptoms were not supported by the evidence because he did not thoroughly consider all factors relevant to the evaluation in accordance with 20 C.F.R. § 404.1529(c) and SSR 16-3p.
2. Medical Opinions
Following a visit on May 11, 2017, Dr. Malhan released Plaintiff with restrictions for no lifting, pushing, or pulling over five pounds and a desk job only due to bilateral shoulder and left hip pain. Tr. at 929.
On December 11, 2018, Dr. Hoenig released Plaintiff with a permanent restriction for no overhead lifting. Tr. at 974.
Plaintiff argues the ALJ did not properly consider opinions from Drs. Malhan and Hoenig in concluding she could perform light work. [ECF No. 15 at 27]. She concedes 20 C.F.R. § 404.1520c was applicable to consideration of the medical opinions based on her filing date, but claims the ALJ erred in failing to consider all relevant factors identified by the court in Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377 (4th Cir. 2021). Id. at 27-31.
The Commissioner argues the medical opinions do not support Plaintiff's allegations, as none of them limited her abilities to stand, walk, or sit. [ECF No. 17 at 20-21]. She maintains the ALJ explained that most of the opinions in the record reflected temporary restrictions. Id. at 20-21. She contends the ALJ appropriately considered the medical opinions in accordance with 20 C.F.R. § 404.1520c, as required. Id. at 20 n. 5. She notes that even if the ALJ erred in finding Plaintiff could perform occasional overhead reaching, instead of no overhead reaching as Dr. Hoenig suggested, such error would be harmless, given the VE's testimony that the jobs he identified did not require overhead reaching. Id. at 2, 11, 21. She claims the ALJ's RFC assessment is supported by the state agency medical consultants' opinions. Id. at 21-22.
Because Plaintiff's applications for benefits were filed after March 27, 2017, the rules in 20 C.F.R. § 404.1520c direct the ALJ's consideration of the medical opinions. See 20 C.F.R. § 404.1520c. Pursuant to this regulation, the ALJ is to consider the persuasiveness of each medical opinion of record, given the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(b), (c). Supportability and consistency are considered the most important of the factors. Accordingly, the ALJ is required to articulate how he considered these factors in the decision. See 20 C.F.R. § 404.1520c(a), (b)(2).
Plaintiff urges the court to find the ALJ was required to address all the factors in accordance with the Fourth Circuit's decision in Dowling. In Dowling, the court considered an ALJ's evaluation of a treating physician's opinion that was rendered prior to March 27, 2017, making 20 C.F.R. § 404.1527 applicable to consideration of the medical opinion evidence. Pursuant to 20 C.F.R. § 404.1527(c), “if a medical opinion is not entitled to controlling weight under the treating physician rule, an ALJ must consider each of the following factors to determine the weight the opinion should be afforded: (1) the ‘[l]ength of the treatment relationship and the frequency of examination'; (2) the ‘[n]ature and extent of the treatment relationship'; (3) ‘[s]upportability,' i.e., the extent to which the treating physician ‘presents relevant evidence to support [the]medical opinion'; (4) ‘[c]onsistency,' i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the physician is a specialist opining as to ‘issues related to his or her area of specialty'; and (6) any other factors raised by the parties ‘which tend to support or contradict the medical opinion.'” Dowling, 986 F.3d at 384-85 (citing 20 C.F.R. § 404.1527(c)(2)(i)-(6). The court explained the ALJ “was required to consider each of the six 20 C.F.R. § 404.1527(c) factors before casting [the] opinion aside.” Id. at 385. It further noted “[w]hile 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 before deciding how much weigh to give the opinion.” Id. (emphasis in original) (citing Arakas, 983 F.3d at 107 n.16 (“20 C.F.R. § 404.1527(c) requires ALJs to consider all 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)).
Plaintiff argues that all the same factors must be considered despite this case's filing after March 27, 2017, but her argument is not supported by the language of 20 C.F.R. § 404.1520c, which specifies “[b]ecause many claims have voluminous case records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings in your case record.” 20 C.F.R. § 404.1520c(b)(1). The regulation subsequently states:
The factors of supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section) are the most important factors we consider when we determine how persuasive we find a medical source's medical opinions or prior administrative medical findings to be. Therefore, we will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision. We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions and prior administrative medical findings in your case record.20 C.F.R. § 404.1520c(b)(2). Given the differences in the applicable regulations that applied to consideration of medical opinions, the undersigned declines to accept Plaintiff's argument and interprets 20 C.F.R. § 404.1520c to require articulation in the ALJ's decision as to the persuasiveness of each medical opinion based on its supportability and consistency with the other evidence of record.
The ALJ acknowledged Dr. Hoenig's December 11, 2018 note was consistent with Plaintiff's report of only “occasional soreness” in her left shoulder, no real pain in the right shoulder, and “physical exam findings of both shoulders showing near full range of motion, strength is good, no crepitus, no pain with impingement maneuvers and no tenderness to palpation (Ex 22F/4-6). Tr. at 22-23.
The ALJ considered Dr. Malhan's opinion to be somewhat persuasive to the extent that Plaintiff required restrictions related to her shoulders, but considered the restriction to be temporary, as opposed to permanent. Tr. at 24. He considered Dr. Hoenig's restriction for “no overhead lifting” to be persuasive and “considered [it] in restricting claimant to only occasional overhead reaching (Ex 22F/3).” Tr. at 25.
The undersigned recommends the court find the ALJ failed to evaluate opinions from Drs. Malhan and Hoenig based on the framework in 20 C.F.R. § 404.1520c. Although the ALJ indicated he found Dr. Malhan's opinion somewhat persuasive and Dr. Hoenig's opinion persuasive, his explanation lacks thorough discussion as to the supportability and consistency factors. See Tr. at 24-25. The undersigned concedes this likely resulted in harmless error with respect to Dr. Hoenig's opinion because the ALJ found Plaintiff capable of performing jobs the VE identified as requiring no work overhead. See Tr. at 66 (reflecting VE's testimony that the identified jobs required no overhead work); see also Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1991) (explaining error is harmless where the ALJ conducts the proper analysis in a comprehensive fashion, cites substantial evidence to support his finding, and would have reached the same result notwithstanding the error). However, because Dr. Malhan's opinion was consistent with sedentary-as opposed to light-work, the ALJ would have reached a different conclusion as to Plaintiff's RFC if he had considered the opinion to be more persuasive. The only reason the ALJ gave for declining to find the opinion more persuasive is that it appeared to be temporary. He did not discuss whether restrictions for no pushing, pulling, or lifting over five pounds and a “[d]esk job only” were supported by Dr. Malhan's exam or consistent with the other evidence of record. See Tr. at 24. Given Plaintiff's allegations as to standing, walking, and lifting restrictions, the ALJ erred in failing to evaluate this opinion in accordance with 20 C.F.R. § 404.1520c and reconcile it with his RFC assessment for light work.
3. RFC Assessment
Plaintiff argues the ALJ assessed an RFC that overestimated her functional abilities. [ECF No. 15 at 32]. She maintains the ALJ failed to consider her statements about her pain and other symptoms and the combined effect of her impairments in assessing an RFC for light work. Id. at 33. She maintains the evidence supports an RFC for sedentary work. Id. at 34. She contends the ALJ did not cite to 20 C.F.R. § 404.1545, the relevant regulatory section, in providing reasons to support the RFC assessment, and based the RFC assessment on a conclusion that her testimony was not credible. Id. at 35-36.
Plaintiff refers to 20 C.F.R. § 416.945 in her brief, ECF No. 15 at 35-36, but the undersigned has considered the corresponding regulation applicable to DIB and DWB claims.
The Commissioner argues substantial evidence supports the RFC for light work with occasional overhead reaching, given successful left rotator cuff repair, management of right rotator cuff partial tear, and full ROM, normal gait, and normal strength, despite complaints of back pain. [ECF No. 17 at 2, 6-10]. She maintains the ALJ provided a narrative discussion that sufficiently explained why the evidence supported his conclusion. Id. at 22. She contends the ALJ cited to 20 C.F.R. § 404.1545 in his decision. Id. at 23.
A claimant's RFC represents the most she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It must be based on all the relevant evidence in the case record. Id. The ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [the claimant's] ability to work.'” Thomas v. Berryhi l, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)). When a claimant has multiple impairments, the ALJ must consider the combined effect of all those impairments in determining her RFC and disability status. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); see also Saxon v. Astrue, 662 F.Supp.2d 471, 479 (D.S.C. 2009) (collecting cases in which courts in this District have reiterated the importance of ALJs' explaining how they evaluated the combined effect of claimants' impairments). The ALJ must “consider the combined effect of a claimant's impairments and not fragmentize them.” Id. “[T]he adequacy requirement of Walker is met if it is clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments.” Brown v. Astrue, C/A No. 0:10-CV-1584-RBH, 3716792, at *6 (D.S.C. Aug. 28, 2012) (citing Green v. Chater, 64 F.3d 657, 1995 WL 478032, at *3 (4th Cir. 1995)).
“A proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. Id. “A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, ” including “a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Thus, the ALJ must include a narrative discussion that cites “specific medical facts (e.g., laboratory findings), and non-medical evidence (e.g., daily activities, observations), ” explains how all the relevant evidence supports each conclusion, and indicates how any material inconsistencies or ambiguities in the record were resolved. SSR 96-8p, 1996 WL 374184, at *7. In Dowling, 986 F.3d at 387, the court emphasized the requirement that the ALJ explicitly follow the regulatory framework in 20 C.F.R. § 404.1545 and SSR 96-8p and engage in a function-by-function analysis as to relevant functions in assessing the claimant's RFC. After noting the ALJ's failure to follow the correct regulatory framework, the court wrote:
Instead, the ALJ's determination was based entirely on SSR 96-7p and 16-3p, which set out the process ALJs use to “evaluate the intensity and persistence of [a claimant's] symptoms” and determine “the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the record.” SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017). Of course, a claimant's symptoms, and the extent to which the alleged severity of those symptoms is supported by the record, is relevant to the RFC evaluation. See 20 C.F.R. § 416.945(a)(3) (stating that when evaluating an RFC, an ALJ should consider “limitations that result from the claimant's symptoms, such as pain”). But, an RFC assessment is a separate and distinct inquiry from a symptom evaluation, and the ALJ erred by treating them as one and the same.Id.
The ALJ addressed Plaintiff's bilateral shoulder pain as follows: “In terms of claimant's bilateral shoulder pain, I found bilateral shoulder arthritis, status-post rotator cuff tear repair ‘severe' and considered this in restricting claimant to light work with occasional overhead reaching and occasional climbing ladders/scaffolds/ropes and crawling.” Tr. at 22. The ALJ explained his consideration of Plaintiff's low back and hip pain, as follows: “I found lumbar degenerative disc disease and degenerative joint disease involving hips ‘severe' and considered it in restricting claimant to light work with postural limitations of frequently climbing steps/ramps and balancing and occasionally climbing ropes/ladders/scaffolds, stooping, kneeling, crouching, and crawling.” Tr. at 23. He considered OSA to be among Plaintiff's severe impairments and “considered it in assessing environmental limitations of avoiding hazards.” Id. He considered Plaintiff's obesity to be severe and acknowledged it put added strain on her back. Tr. at 24. However, he noted Plaintiff had not exhibited limitations in her ability to ambulate effectively, did not require a cane or walker for support, and had been observed to walk with a steady, non-antalgic gait. Id. He concluded obesity did not impede Plaintiff's ability to ambulate effectively, but “reasonably affect[ed] her ability to perform some postural activities and carry heavy weights.” Id. He stated he had “considered those plausible limitations in restricting claimant to light work with occasional climbing ladders/rope/scaffolds, kneeling, crouching, crawling and stooping and frequent climbing steps/stairs and balancing.” Id.
The ALJ considered the medical opinions in assessing an RFC for light work. Tr. at 24. He found the state agency medical consultants' opinions were persuasive, because the physicians' rationale was supported by the evidence and subsequent records failed to reveal any significant changes that would necessitate modification of the opinions. Id. He found Dr. Malhan's opinion and Dr. Hoenig's opinion as to temporary restrictions somewhat persuasive and Dr. Hoenig's opinion as to permanent restriction persuasive. Tr. at 24, 25. He wrote: “Based on the foregoing, I find the claimant has the above residual functional capacity assessment, which is supported by the longitudinal record, including the claimant's activities of daily living.” Tr. at 25.
The ALJ's only reference to 20 C.F.R. § 404.1545 and SSR 96-8p appears in the boilerplate explanation of the disability evaluation process that precedes his findings of fact and conclusions of law. See Tr. at 17. The ALJ considered Plaintiff's allegations generally, but not specifically, and cited some evidence to suggest they were inconsistent with the other evidence of record. He did not adequately explain how the evidence supported the RFC he assessed.
Contrary to the requirements in 20 C.F.R. § 404.1545(b) and SSR 96-8p, the ALJ failed to assess Plaintiff's physical work-related abilities on a function-by-function basis prior to expressing the RFC in terms of the exertional levels of work. See SSR 96-8p, 1996 WL 374184, at *5 (1996) (“Exertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's remaining abilities to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying, pushing, and pulling. Each function must be considered separately (e.g., “the individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours”), even if the final RFC assessment will combine activities (e.g., “walk/stand, lift/carry, push/pull”).). He found Plaintiff could perform light work based on bilateral shoulder arthritis, lumbar degenerative disc disease and degenerative joint disease, and obesity. However, he did not independently consider Plaintiff's abilities to sit, stand, walk, lift, carry, push, and pull in assessing the RFC for light work. Consequently, he did not resolve evidence, including Plaintiff's allegations and Dr. Malhan's opinion, that suggested her lifting, pushing, pulling, standing, and walking abilities were less than that required for light work. Although the ALJ indicated he determined Plaintiff could perform light work based on multiple impairments, he did not consider her ability to perform the individual strength demands of light work based on the combined effect of her impairments.
Although the ALJ cited Plaintiff's ADLs as supporting the RFC assessment, he provided no explanation for his conclusion. Absent from the ALJ's discussion of his RFC assessment is any citation of Plaintiff's ADLs or indication as to how they were consistent with the individual strength demands of light work.
In light of the foregoing, the undersigned recommends the court find substantial evidence does not support the ALJ's RFC assessment.
4. Additional Allegation of Error
Given the above recommendation for remand, the undersigned declines to address Plaintiff's allegation that the ALJ erred in considering functional limitations imposed by her mental impairments. Upon remand, the ALJ should consider Plaintiff's ability to meet the physical, mental, sensory, and other requirements of work in assessing an RFC in accordance with 20 C.F.R. § 404.1545 and SSR 96-8p.
The undersigned declines Plaintiff's request to remand the case for an award of benefits based on Rule 201.12 of the Medical-Vocational Guidelines. The undersigned's recommendation should not be construed as a conclusion that Plaintiff has a maximum RFC for sedentary work, but, rather that the ALJ did not reconcile contrary evidence and adequately explain his finding that Plaintiff had a maximum RFC for light work. In addition, the VE testified that Plaintiffs PRW was semiskilled and skilled and would have produced transferable skills. See Tr. At 62, 65.
Rule 201.12 directs a finding of “disabled” if an individual is restricted to sedentary work; closely approaching advanced age; a high school graduate or more with education that does not provide for direct entry into skilled work; and has unskilled or no previous work experience. 20 C.F.R. Pt. 404, Subpt. P, App'x 2 § 201.12.
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).