Opinion
C/A 1:23-3688-BHH-SVH
01-11-2024
Bonnie S. F.,[1]Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On May 11, 2020, Plaintiff protectively filed an application for DIB in which she alleged her disability began on June 15, 2018. Tr. at 89, 353-54. Her application was denied initially and upon reconsideration. Tr. at 133-36, 144-47. On March 4, 2022, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Ethan Chase. Tr. at Tr. at 34-54 (Hr'g Tr.). On March 14, 2022, the ALJ issued an unfavorable decision, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 110-26. On September 29, 2022, the Appeals Council issued an order remanding the case to the ALJ. Tr. at 127-30. Plaintiff had a second hearing on February 9, 2023. Tr. at 55-72 (Hr'g Tr.). The ALJ issued a second unfavorable decision on February 21, 2023. Tr. at 7-25. 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 July 31, 2023. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 54 years old at the time of the first hearing and 55 years old at the time of the second hearing. Tr. at 38, 61. She completed high school. Tr. at 38. Her past relevant work (“PRW”) was as a motor vehicle clerk and an office clerk. Tr. at 68. She alleges she has been unable to work since June 15, 2018. Tr. at 353.
2. Medical History
On October 25, 2017, magnetic resonance imaging (“MRI”) of Plaintiff's cervical spine showed multilevel spondylosis most prominent at ¶ 6-7, where a broad-based disc bulge and left-greater-than-right uncovertebral osteophytes created left exiting foraminal narrowing. Tr. at 617-18.
On February 13, 2018, Wayne B. Bauerle, M.D. (“Dr. Bauerle”), performed anterior cervical discectomy and fusion at the C5-6 and C6-7 areas. Tr. at 552-54. He discharged Plaintiff the following day. Tr. at 547.
Plaintiff followed up with Dr. Bauerle on February 19, 2018. Tr. at 600. She reported muscle aches and back pain, but indicated she had no significant complaints and her neurological symptoms had resolved. Id. Dr. Bauerle instructed Plaintiff to continue to wear a cervical collar, to maintain a 10-pound lifting restriction, and to follow up in three weeks. Id.
On March 12, 2018, Dr. Bauerle noted Plaintiff's incision looked good and she was neurologically intact. Tr. at 603. He continued Plaintiff in the soft cervical collar with a 10-pound lifting restriction and instructed her to follow up in a month. Id.
On April 9, 2018, Dr. Bauerle noted Plaintiff's incision had healed nicely and she was neurologically intact. Tr. at 606. He advised Plaintiff to follow up in a month for repeat radiographs and noted she should be able to start physical therapy at that time. Tr. at 606-07. He authorized Plaintiff to return to work on full duty starting April 10, 2018. Tr. at 607.
Dr. Bauerle noted Plaintiff was clinically doing well with no radicular symptoms on May 21, 2018. Tr. at 609. He ordered x-rays and instructed Plaintiff to follow up in two months. Id.
On July 30, 2018, Dr. Bauerle observed that Plaintiff demonstrated mildly restricted range of motion (“ROM”) in her cervical spine, but had normal motor and sensory exams in all extremities and no signs of myelopathy. Tr. at 610. X-rays showed acceptable position and alignment of instrumentation. Tr. at 611. Dr. Bauerle assessed cervicalgia, advised Plaintiff to engage in activities as tolerated, and indicated he was releasing her to follow up as needed. Id.
Plaintiff presented to chiropractor Michael Gambacorta (“Dr. Gambacorta”), on November 15, 2018. Tr. at 479-83. She complained of constant, severe lower back pain that worsened with activity, standing, and walking and caused difficulty sleeping. Tr. at 479. She reported inability to sit or stand for long periods, bend, lift, perform yardwork or housework, spend time with family, and work. Id. She endorsed a history of diabetes, headaches, and numbness in her feet and legs. Id. Dr. Gambacorta noted decreased ROM in Plaintiff's cervical and lumbar spines, spasms, hypomobility, and end-point tenderness in her lumbar spine, cervical spine, and pelvis. Tr. at 479-80. He found active trigger points in Plaintiff's bilateral sacroiliac regions, positive Soto-Hall test on the right consistent with mid-spine pain, positive bilateral Kemp's test indicative of disc protrusion or prolapse, positive Milgram's test suggestive of pathology in the spinal cord sheath, such as herniated disc, and edema in the cervical and thoracic spines. Tr. at 480. He assessed lumbar segment dysfunction, degeneration of the lumbar or lumbosacral intervertebral disc, degeneration of the cervical intervertebral disc, segmental and somatic dysfunction of the lumbar region, other intervertebral disc degeneration of the lumbar region, segmental and somatic dysfunction of the cervical region, and other cervical region disc degeneration. Tr. at 483.
On June 20, 2019, x-rays of Plaintiff's lumbar spine showed moderate diffuse spondylotic and degenerative facet disease. Tr. at 543. Plaintiff demonstrated limited ROM on flexion and extension, but no malalignment. Tr. at 544.
On July 10, 2019, Plaintiff described moderate pain in the arch and dorsal aspect of her right foot and in her right ankle that worsened with movement. Tr. at 651. X-rays of Plaintiff's right foot were normal. Tr. at 652.
Podiatrist Scott Hamilton (“Dr. Hamilton”), assessed right foot pain and prescribed orthotics. Id. He noted Plaintiff's pain was most likely caused by wearing flip-flops. Id.
Physical therapist Vincent Digiovanna (“PT Digiovanna”) evaluated Plaintiff's cervical and thoracic spines on July 12, 2019. Tr. at 568. Plaintiff reported chronic cervical and lumbar pain that worsened with activity. Id. PT Digiovanna observed decreased ROM of Plaintiff's cervical and lumbar regions, but overall good preservation of upper and lower extremity strength. Tr. at 568-69. He assessed cervicalgia, cervicobrachial syndrome, lower back pain, and lumbago with bilateral sciatica. Tr. at 568. He recommended twice weekly sessions for four weeks. Tr. at 569.
Plaintiff returned for physical therapy sessions on July 15, 19, and 24, 2019. Tr. at 571-76. She reported neck stiffness, intermittent headaches, and being less symptomatic overall, but having difficulty turning her neck. Tr. at 572, 574. During the July 19 visit, PT Digiovanna advised Plaintiff to follow up once a week due to her high copay. Tr. at 572. He referred Plaintiff back to her physician on July 24, 2019, and noted she made fair progress with therapy and had a good prognosis if she continued with the prescribed home exercise program. Tr. at 576.
Plaintiff returned to Dr. Bauerle on July 31, 2019, with complaints of pain and numbness in her legs and lumbar spine. Tr. at 620. Dr. Bauerle observed restricted ROM of the lumbar spine in multiple planes and paralumbar muscle discomfort to palpation in the lower lumbar region, but ability to toe- and heel-rise and perform a squat maneuver, no hip joint pathology, and normal motor, sensory, and vascular exams in all four extremities. Tr. at 621. He assessed lumbar spondylosis with mechanical lower back pain and bilateral neurogenic claudication and ordered an MRI of Plaintiff's lumbar spine. Id.
On August 5, 2019, an MRI of Plaintiff's lumbar spine showed mild multilevel degenerative changes that were worse at ¶ 3-4 and L4-5. Tr. at 628-29.
Plaintiff followed up with Dr. Bauerle to review the MRI results on August 7, 2019. Tr. at 622. She endorsed mostly right-sided radicular symptoms. Tr. at 623. Dr. Bauerle noted restricted ROM in the lumbar spine and paralumbar muscle discomfort in the lower lumbar region. Tr. at 624. He explained the MRI showed multilevel degenerative changes in Plaintiff's lumbar spine and stenosis at ¶ 3-4 and L4-5, predominantly on the right side. Tr. at 623. He assessed multilevel lumbar spondylosis with right lower extremity radiculopathy and referred Plaintiff to a pain management provider for right-sided L3-4 and L4-5 transforaminal epidural steroid injections (“ESIs”). Tr. at 624.
On August 21, 2019, Plaintiff complained her right foot pain had failed to improve. Tr. at 654. Dr. Hamilton noted 6+/10 pain on palpation of the medial aspect of Plaintiff's right heel. Id. He assessed right foot plantar fasciitis and right foot pain and administered a Kenalog and Marcaine injection to the plantar surface of her right heel at the inferior calcaneal tubercle. Id.
On September 3, 2019, Plaintiff reported pain in her right buttock and leg and lower back. Tr. at 625. Scott Sauer, D.O. (“Dr. Sauer”), noted Plaintiff had a history of neck pain that radiated to her bilateral arms and caused tingling in her fingers, but noted her neck and arm pain had resolved following ACDF. Tr. at 626. He assessed lumbosacral radiculitis and administered transforaminal ESIs. Tr. at 627. Plaintiff tolerated them well. Id.
Plaintiff presented to clinical physician assistant Taylor Lewis (“PA Lewis”) as a new patient on September 9, 2019. Tr. at 694. She reported a history of type 2 diabetes, hyperlipidemia, hypothyroidism, and plantar fasciitis. Tr. at 699. PA Lewis noted Plaintiff was obese, but otherwise indicated normal observations on physical exam. Tr. at 701. She assessed type 2 diabetes, hypothyroidism, hyperlipidemia, and gastroesophageal reflux disease (“GERD”) with esophagitis. Tr. at 702. She ordered lab studies and prescribed Januvia for diabetes and omeprazole for GERD. Id.
On September 10, 2019, Plaintiff reported treatment for her right foot pain had been 100% effective. Tr. at 656. Dr. Hamilton assessed resolved plantar fasciitis and right foot pain. Id.
Plaintiff presented to John Edmison, M.D. (“Dr. Edmison”), for a consultation regarding GERD on September 27, 2019. Tr. at 641. Dr. Edmison ordered a colonoscopy and an esophagogastroduodenoscopy (“EGD”) and instructed Plaintiff to continue omeprazole 40 mg. Tr. at 642.
On November 21, 2019, an EGD was normal, aside from mild erythema in the antrum and a hiatal hernia in the cardia. Tr. at 636-38.
Plaintiff followed up with PA Lewis on December 12, 2019. Tr. at 687. Dr. Lewis ordered lab studies and refilled Januvia. Tr. at 694.
On January 2, 2020, a colonoscopy showed mild diverticulosis of Plaintiff's sigmoid colon. Tr. at 633-35.
Plaintiff complained of a recurrence of right foot pain on February 18, 2020. Tr. at 657. Dr. Hamilton noted pain on palpation of the medial aspect of Plaintiff's right heel. Id. He assessed recurrence of plantar fasciitis and pain in the right foot and administered a Marcaine and Kenalog injection to the plantar area of Plaintiff's right heel. Tr. at 658.
Plaintiff continued to endorse right foot pain on March 3, 2020. Tr. at 659. Dr. Hamilton discussed treatment options, including surgical plantar fasciotomy, and administered another Marcaine and Kenalog injection to Plaintiff's right heel. Tr. at 660.
On May 12, 2020, Plaintiff reported her right heel was slightly better, but she had developed pain in her left heel. Tr. at 661. She rated pain her right heel as a two and her left heel as a six on a 10-point scale. Id. Dr. Hamilton noted pain on palpation of the medial aspect of Plaintiff's bilateral heels. Id. He assessed bilateral plantar fasciitis and pain in the right foot and plantar fasciitis in the left foot and administered a Marcaine and Kenalog injection on the left. Tr. at 661-62.
Plaintiff also returned to Dr. Eagerton on March 12, 2020. Tr. at 68187. Dr. Eagerton noted Plaintiff's A1C was excellent. Tr. at 687. He indicated Plaintiff was overdue for an eye exam, but could not currently afford one. Id. He stated Plaintiff's low-density lipoprotein (“LDL”) cholesterol was above target and increased Atorvastatin to 80 mg daily. Id.
On July 21, 2020, Plaintiff noted increased fatigue. Tr. at 680. Physician assistant Taylor Currall (“PA Currall”) stated Plaintiff had “excellent” A1C, despite having discontinued use of Januvia since her last visit. Tr. at 680. She indicated Plaintiff should continue to treat her diabetes without medication and to monitor her blood glucose. Id. They further agreed that Plaintiff would try to manage her cholesterol with increased fiber, but would likely need to start Atorvastatin if her cholesterol failed to improve prior to her next visit. Id. PA Currall indicated Plaintiff had slightly elevated alkaline phosphatase and that she would check her vitamin D level to determine if a low level might be contributing to her fatigue. Id.
On September 21, 2020, Plaintiff reported feeling well overall, but having sustained four recent falls “out of no where.” Tr. at 934. She indicated she had injured her left ankle and right knee during one fall. Id. She endorsed muscle aches, arthralgias in her hips and left ankle, and back pain. Tr. at 935. Sheree Nwanegwo, M.D. (“Dr. Nwanegwo”), observed reduced ROM in Plaintiff's back and tenderness across her lower back and in the lateral aspect of her left ankle. Id. She ordered lab studies, referred Plaintiff for pain management, and prescribed Butalbital-acetaminophen-caffeine for headaches and Tramadol for hip pain. Tr. at 935-36.
On October 13, 2020, an MRI of Plaintiff's lumbar spine showed mild-to-moderate degenerative disc disease (“DDD”) and facet arthrosis, trace anterolisthesis of L2 on L3, mild-to-moderate lateral recess narrowing at ¶ 3-4, mild-to-moderate foraminal narrowing on the right greater than the left at ¶ 4-5, and less pronounced narrowing at other areas. Tr. at 716-17.
Plaintiff presented to Savonya McAllister, M.D. (“Dr. McAllister”), for an orthopedic consultative exam on October 27, 2020. Tr. at 1066-70. She reported chronic neck and back pain, cervical disc herniation, headaches, bilateral sciatica, and limited ROM. Tr. at 1068. She indicated she wore a transcutaneous epidural nerve stimulation (“TENS”) unit most of the day to ease her pain. Id. Dr. McAllister noted neck pain, positive straight-leg raising (“SLR”) test on the right, cervical flexion to 30/50 degrees, cervical extension to 30/60 degrees, cervical lateral flexion to 35/45 degrees, cervical rotation to 50/80 degrees, lumbar extension to 15/25 degrees, difficulty squatting and walking due to back pain, and depressed mood. Tr. at 1066-67, 1069-70. She indicated Plaintiff was wearing the TENS unit during the exam, which likely helped to ease some of her pain and provide more comfort with maneuvers. Tr. at 1070. She indicated Plaintiff's pain appeared more likely related to muscle pain than nerve pain. Id.
Plaintiff presented to physical therapist Susan Blanton (“PT Blanton”) for a physical therapy evaluation on November 10, 2020. Tr. at 937. PT Blanton noted lumbar radiculitis, impaired posture, increased pain, and decreased ROM, strength, flexibility, and soft tissue mobility. Id. Plaintiff claimed her pain restricted her from sitting for more than 30 minutes, sleeping, walking, and standing for more than 30 minutes. Id.
On December 4, 2020, state agency medical consultant Christine Thompson, M.D., 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; never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; and frequently reach overhead bilaterally. Tr. at 81-84. A second state agency medical consultant, Isabella McCall, M.D., provided the same RFC assessment on August 5, 2021. Tr. at 100-03.
On December 17, 2020, Plaintiff was discharged from physical therapy after making 11 visits and demonstrating objective improvement with ROM, strength, and soft tissue mobility. Tr. at 939.
Plaintiff returned to Dr. Gambacorta for chiropractic treatment on February 11, 2021. Tr. at 755. She endorsed pain in her middle and lower back, neck, legs, feet, buttocks, and head that worsened with movement and activity. Tr. at 784. She said she had difficulty sleeping, completing activities of daily living (“ADLs”), sitting or standing for too long, bending, lifting, and walking. Id. She endorsed numbness in her feet and legs. Id. Dr. Gambacorta observed restricted ROM in Plaintiff's cervical, lumbodorsal, and lumbar regions, multiple subluxations with spasms, hypomobility, and end-point tenderness in the lumbar, thoracic, and cervical spines and pelvis, active trigger points in the bilateral sacroiliac regions, positive Soto-Hall test, positive bilateral Kemp's test, positive Milgram's test, pinwheel test that showed sensory dermatome hyperesthesia at the bilateral L5 level, active trigger points in the gluteus medius and minimus, lumbar and thoracic paraspinals, and upper trapezius, and hypertonicity and spasms in the bilateral cervical dorsal areas, lumbosacral region, and bilateral lower lumbar areas. Tr. at 784-86. He completed a questionnaire regarding Plaintiff's functioning that is addressed in detail below. Tr. at 718.
On March 2, 2021, Plaintiff complained of moderate pain in both feet that worsened with ambulation. Tr. at 745. Dr. Hamilton observed 6/10 pain on palpation of the plantar aspect of the left heel and 4/10 pain on palpation of the plantar aspect of the right heel. Tr. at 746. X-rays of Plaintiff's bilateral feet showed thickening of the plantar fascial bands consistent with heel spur syndrome. Id. Dr. Hamilton administered a Marcaine and Kenalog injection to the left heel, discussed plantar fasciotomy, and instructed Plaintiff to use an Achilles tendon contracture night splint. Id.
On March 4, 2021, Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in the pelvis and cervical and lumbar spines, active trigger points in Plaintiff's gluteus medius and minimus, lumbar and thoracic paraspinals, and upper trapezius region, hypertonicity and spasms in the bilateral cervical dorsal areas, lumbosacral region, and bilateral lower lumbar areas, and decreased ROM in the cervical, lumbar, and lumbodorsal regions. Tr. at 781-82. He performed regional manipulation and a drop-table postural reeducation adjustment. Tr. at 783.
Plaintiff reported 100% improvement in her feet on March 16, 2021. Tr. at 748. Dr. Hamilton noted Plaintiff would return for an ultrasound of her lateral left ankle and a cortisone injection. Id.
Plaintiff reported moderate stress, low energy, fluctuating mood, difficulty sleeping, and difficulty concentrating on March 18, 2021. Tr. at 779. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in the cervical, lumbar, and thoracic spines and sacrum, and loss of muscle strength in the neck, anterior obliques, shoulder flexors, and shoulder medial rotators. Id.
On March 23, 2021, Plaintiff reported feeling well overall, staying active, and eating better than she had in the past. Tr. at 727. Dr. Nwanegwo noted obesity, chronic illness, limited ROM in the back, and tenderness in the bilateral hips on exam. Id. She ordered lab studies, referred Plaintiff to physical therapy for her neck, and refilled Tramadol. Tr. at 728. She completed a questionnaire, as discussed in detail below. Tr. at 720.
Plaintiff also presented to PA Currall on March 23, 2021. Tr. at 911. PA Currall recorded normal exam findings, aside from obesity, instructed Plaintiff to check her blood glucose level at different times of day, and continued her medications. Tr. at 915-16.
Plaintiff reported moderate stress, low energy, agitated mood, and difficulty sleeping and concentrating on April 1, 2021. Tr. at 777. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, endpoint tenderness in the cervical and thoracic spine, pelvis, and sacrum and with head flexion and rotation of the trunk to the right, active trigger points in the left sacroiliac and lumbar regions, bilateral joint dysfunction at the T1 sternocostal junction with fixation and point tenderness, and bilateral cervical edema. Id.
Plaintiff presented for a physical therapy consultation on April 5, 2021. Tr. at 941. She endorsed symptoms of cervicalgia, including decreased ROM, strength, and mobility, increased pain, and impaired posture. Id. She indicated her impairment affected her abilities to drive, read, sleep, and use a computer. Id.
Plaintiff complained of pain in her bilateral feet and left ankle on April 7, 2021. Tr. at 739. Dr. Hamilton observed 8/10 pain in palpation of the lateral aspect of the left sinus tarsi. Id. He assessed left ankle and foot joint pain and administered a Marcaine and Kenalog injection. Id.
On April 15, 2021, Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's cervical, lumbar, and thoracic spines, pelvis, and sacrum, and bilateral joint dysfunction at the T1 sternocostal junction with point tenderness and fixation. Tr. at 775. He applied moist heat and performed mechanical traction. Tr. at 776.
Plaintiff complained of pain in her buttocks that worsened with applied pressure and prolonged sitting on April 29, 2021. Tr. at 773. Dr. Gambacorta observed multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's sacrum and cervical, lumbar, and thoracic spines, edema in her left cervical and left cervical dorsal regions, positive Soto-Hall test, and positive Kemp's test on the right. Id.
By April 30, 2021, Plaintiff had completed eight physical therapy sessions and demonstrated objective improvement with ROM, strength, and soft tissue mobility. Tr. at 942. She noted improved abilities to drive and use a computer mouse, but continued difficulty vacuuming, sweeping, turning her head while driving, performing overhead tasks, reading, and using the computer. Id.
Plaintiff endorsed moderate stress, moderate energy, fluctuating mood, and difficulty sleeping and concentrating on May 13, 2021. Tr. at 771. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's sacrum and cervical, lumbar, and thoracic spines, head tilt to the left, a high right pelvis, bilateral joint dysfunction at the T1 sternocostal junction with point tenderness and fixation, bilateral cervical dorsal edema, positive bilateral cervical compression test, radiating spinal pain, and positive bilateral Kemp's test. Id.
Plaintiff was discharged from physical therapy on June 7, 2021, following 14 sessions. Tr. at 944. She was noted to have made objective improvements with soft tissue mobility, but to have continued problems with ROM, strength, and pain that limited her ability to perform vacuuming, sweeping, and overhead tasks. Id.
Plaintiff denied pain and discomfort on June 10, 2021. Tr. at 769. Dr. Gambacorta observed multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical and lumbar spines, tenderness in her thoracic spine, positive Hibb's test on the right, pelvic pain, and positive bilateral Kemp's test. Id.
Plaintiff endorsed arthralgias/joint pain and back pain, headaches, and fatigue on a review of systems on June 23, 2021. Tr. at 901-02. PA Currall noted obesity and tenderness in the bilateral plantar facia. Tr. at 902. She ordered lab studies and continued Plaintiff's medications. Tr. at 902-03.
Plaintiff reported lower back pain, moderate stress, low energy, fluctuating mood, and difficulty sleeping and concentrating on June 24, 2021. Tr. at 767. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's cervical and thoracic spines, pelvis, and sacrum, head tilt to the left, high right pelvis, bilateral joint dysfunction at the T1 sternocostal junction with point tenderness, left posterior shoulder and left cervical dorsal edema, positive Milgram's test, and positive bilateral Kemp's test. Id.
On July 8, 2021, Plaintiff endorsed lower back pain that worsened with movement, applied pressure, and prolonged sitting. Tr. at 764. Dr. Gambacorta observed multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical and thoracic spines, bilateral joint dysfunction at the T1 sternocostal junction, loss of muscle strength in the lateral rotator of the hip and cervical lateral flexors and posterior obliques, positive maximum cervical compression test on the left, and positive Ely's heel-to-buttock test bilaterally. Id.
Plaintiff reported lower back discomfort, moderate stress level, low energy level, fluctuating mood, difficulty sleeping, and difficulty concentrating on July 22, 2021. Tr. at 761. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's sacrum and lumbar, cervical, and thoracic spines, head tilt to the left, rotation of the trunk to the left, loss of muscle strength in the lateral flexors of the neck, positive right Soto-Hall test, and positive right Kemp's test. Id.
Plaintiff complained of worsening pain and swelling in her bilateral feet and left ankle on July 26, 2021. Tr. at 797. Dr. Hamilton noted pain on palpation of the left Achilles tendon and antalgic limp. Id. He assessed insertional calcific tendinosis in the left Achilles tendon, placed Plaintiff in a controlled ankle movement (“CAM”) walker, and prescribed Prednisone. Tr. at 798.
Plaintiff reported moderate stress and energy, fluctuating mood, and difficulty sleeping and concentrating on August 5, 2021. Tr. at 825. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical and thoracic spines, head tilt to the left, rotation of the trunk to the left, loss of muscle strength in the anterior obliques of the neck, shoulder abductors, shoulder extensors, and hip lateral rotators, and decreased ROM of the cervical, lumbodorsal, and lumbar regions. Id. He applied moist heat and performed mechanical traction. Tr. at 826-27.
Plaintiff continued to report pain in her left ankle and bilateral feet on August 18, 2021. Tr at 789. Dr. Hamilton noted minimal pain on palpation of the left Achilles tendon and assessed insertional calcific tendinosis of the left Achilles tendon. Id.
Plaintiff reported overall improvement, but difficulty with twisting, reaching, and sitting on August 19, 2021. Tr. at 828. Dr. Gambacorta recorded multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical and thoracic spines, spasms in her pelvis and lumbar and cervical spines, loss of muscle strength in the lateral flexors of the neck, positive Soto-Hall test, and positive Kemp's test on the right. Id. He stated Plaintiff's condition was showing improvement. Id.
Plaintiff reported moderate stress, low energy, fluctuating mood, and difficulty sleeping and concentrating on September 16, 2021. Tr. at 831. Dr. Gambacorta's findings included multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical, lumbar, and thoracic spines, and loss of muscle strength in the shoulder extensors and lateral flexors and anterior and posterior obliques of the neck. Id.
Plaintiff complained of neck and upper back pain, muscle aches, frequent and severe headaches, fatigue, and insomnia on October 7, 2021. Tr. at 892, 895. Dr. Nwanegwo noted obesity, chronic illness, tenderness and pain with ROM of the posterior neck, mild epigastric tenderness, limited ROM of the lower back, tenderness in the bilateral hips, and lateral-posterior neck pain that radiated into the occipital region. Tr. at 895. She ordered lab studies and prescribed Butalbital-APAP. Tr. at 895-96. She noted Plaintiff had not participated in physical therapy due to the cost. Tr. at 896.
Plaintiff endorsed discomfort in the back of the neck, moderate stress, low energy, fluctuating mood, difficulty sleeping, and variable concentration on October 14, 2021. Tr. at 833. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical and thoracic spines, head tilt and rotation of the trunk to the left, and positive Kemp's test on the left. Id.
On November 10, 2021, Plaintiff reported moderate stress, low energy, variable mood, interrupted sleep, and difficulty concentrating. Tr. at 835. Dr. Gambacorta noted decreased ROM to right lateral cervical flexion, lumbodorsal extension, and left lateral lumbar flexion, muscle subluxations with spasms, hypomobility, and end-point tenderness in the pelvis and cervical and thoracic spines, and reduced muscle strength in the lateral flexors of the neck, shoulder abductors, and hip flexors. Tr. at 835-36.
Plaintiff reported moderate stress, low energy, variable mood, interrupted sleep, and variable concentration on December 9, 2021. Tr. at 838. Dr. Gambacorta recorded findings of decreased ROM to right cervical rotation and lumbodorsal extension, multiple subluxations with spasms, hypomobility, and end-point tenderness in the sacrum, pelvis, and cervical, lumbar, and thoracic spines, bilateral joint dysfunction at the T1 sternocostal junction with point tenderness and fixation, and loss of muscle strength in the anterior obliques, shoulder abductors, and hip abductors. Id.
On December 15, 2021, Plaintiff endorsed arthralgias/joint pain and back pain on a review of systems. Tr. at 889. Dr. Eagerton noted Plaintiff was overweight and had tenderness from plantar fasciitis. Id. He indicated Plaintiff's A1C remained “excellent,” despite the discontinuation of medications for diabetes. Tr. at 890. He ordered lab studies and continued Plaintiff's other medications. Id.
On January 6, 2022, Plaintiff reported moderate stress and energy, fluctuating mood, and difficulty sleeping and concentrating. Tr. at 841. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's sacrum, pelvis, and cervical, lumbar, and thoracic spines, loss of muscle strength in her lateral flexors and shoulder abductors, extensors, and medial rotators, positive maximum cervical compression test on the left, and positive bilateral Kemp's test. Id.
On February 3, 2022, Dr. Gambacorta noted findings of multiple subluxations with spasms, hypomobility, and end-point tenderness at Plaintiff's sacrum, pelvis, and cervical, thoracic, and lumbar spines, loss of muscle strength in her lateral flexors and shoulder abductors, extensors, and medial rotators, positive maximum cervical compression test on the left, and positive bilateral Kemp's test. Tr. at 1023. He treated Plaintiff with cold packs, moist heat, and mechanical traction. Tr. at 1024.
Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical and thoracic spines and active trigger points in her left lumbar and sacroiliac regions on March 3, 2022. Tr. at 1025. He prescribed cold packs, applied moist heat, and performed mechanical traction. Tr. at 1026.
On April 6, 2022, Plaintiff complained of moderate stress, low energy, frequently-agitated mood, and difficulty sleeping and concentrating. Tr. at 1027. Dr. Gambacorta noted multiple subluxations with spasms, hypomobility, and end-point tenderness in Plaintiff's pelvis, sacrum, and cervical, thoracic, and lumbar spines, bilateral joint dysfunction at the T1 sternocostal junction with fixation and point tenderness, loss of muscle strength in the lateral flexors, anterior obliques, and hip flexors, positive Soto-Hall test, positive Kemp's test on the right, and decreased ROM to cervical extension, right cervical rotation, and lumbodorsal flexion. Id.
Plaintiff presented to Victoria Lopez, M.D. (“Dr. Lopez”), to establish treatment on April 7, 2022. Tr. at 980. She complained of constant headaches, cognitive issues, and problems throughout her body. Id. She reported a history of type 2 diabetes, hypothyroidism, GERD, dihydrolipoamide dehydrogenase (“DLD”) deficiency, arthralgias, chronic joint, back, and neck pain, headaches, difficulty walking long distances, wrist pain, and carpal tunnel syndrome. Tr. at 983. Dr. Lopez noted a ganglion cyst on Plaintiff's left dorsal wrist. Id. She assessed neck pain, rib pain, GERD, pure hypocholesterolemia, type 2 diabetes, hypothyroidism, and left wrist ganglion cyst. Tr. at 983-84. She prescribed Gabapentin 300 mg, ordered a mammogram, referred Plaintiff to a hand surgeon and a pain management specialist, and continued omeprazole, Synthroid, and Atorvastatin. Tr. at 984.
On April 20, 2022, Plaintiff complained her mid-back pain was causing difficulty sleeping. Tr. at 977. Scott Mayhew, M.D. (“Dr. Mayhew”), observed paravertebral tenderness in Plaintiff's thoracic and lumbar spine. Id. He ordered MRIs of the thoracic and lumbar spines. Tr. at 977-78.
On April 29, 2022, the MRIs of Plaintiff's thoracic and lumbar spines showed no acute or aggressive osseous abnormalities, but she had multilevel DDD and facet arthropathy in the lumbar spine. Tr. at 945-48.
On May 6, 2022, Plaintiff reported middle and lower back pain that radiated into her bilateral legs and right foot and caused difficulty sleeping. Tr. at 971. Dr. Mayhew noted general tenderness, paravertebral tenderness of the thoracic and lumbar spines, positive SLR on the right, positive facet maneuvers, positive Patrick's test, and tenderness of the bilateral sacroiliac joints. Id. He assessed lumbosacral radiculitis, lumbosacral spondylosis, and chronic thoracic back pain. Tr. at 971-72. He ordered lumbar ESIs and instructed Plaintiff to perform back exercises. Id.
Dr. Eagerton observed Plaintiff to be overweight and to have back pain on May 9, 2022. Tr. at 965. He ordered lab studies and prescribed Synthroid, Atorvastatin, omeprazole, Butalbital-acetaminophen-caffeine, and coenzyme Q10. Tr. at 965-66.
Plaintiff reported moderate stress, low energy, frequently-agitated mood, interrupted sleep, and varied concentration on May 12, 2022. Tr. at 1030. Dr. Gambacorta noted decreased ROM to left lateral cervical flexion, lumbodorsal flexion, and left lateral lumbar flexion, multiple subluxations with spasms, hypomobility, and end-point tenderness in the sacrum, pelvis, and cervical, thoracic, and lumbar spines, bilateral joint dysfunction at the T1 sternocostal junction with fixation and point tenderness, and loss of muscle strength in the neck and hip flexors. Id.
On June 16, and July 7, 2022, Plaintiff's complaints and Dr. Gambacorta's observations and recommendations were consistent with prior exams. Tr. at 1033-35, 1036-37.
Dr. Nwanegwo observed tenderness and limited ROM in Plaintiff's neck, tenderness in her middle and lower back, and slow, slightly bent-over gait on July 18, 2022. Tr. at 1060. She assessed body mass index (“BMI”) 31.0-31.9, bilateral hip pain, lumbar pain, hypothyroidism, GERD, and neck pain. Tr. at 1058-59. She ordered lab studies. Id.
Plaintiff followed up with Dr. Gambacorta on August 4, September 8, and October 6, 2022. Tr. at 1038-46. She reported chronic lower back pain, moderate-to-high stress, low-to-moderate energy, fluctuating and depressed mood, and difficulty sleeping and concentrating. Tr. at 1038, 1041, 1044. Dr. Gambacorta reported findings consistent with prior exams. Id.
On October 11, 2022, Plaintiff reported worsening lower back pain with radiation to the right lateral and lower gluteal regions and right groin, numbness and tingling in her right foot, and weakness in her right lower extremity. Tr. at 1006. She stated her pain worsened with lifting, bending, twisting, squatting, and prolonged sitting, standing, and walking. Id. Thomas Ellison, M.D. (“Dr. Ellison”), noted mild tenderness over Plaintiff's midline lumbosacral junction and non-painful SLR test. Tr. at 1007. He also found normal gait, normal deep tendon reflexes at the knees and ankles, 5/5 strength of the bilateral lower extremities, intact sensation, and no abnormalities in the neck or upper extremities. Tr. at 1007-08. He assessed lumbar spinal stenosis, lumbar disc annular tear, lumbar DDD, displacement of the lumbar intervertebral disc with radiculopathy, back pain with rightsided sciatica, arthritis, osteoarthritis of the lumbar spine with radiculopathy, other chronic pain, type 2 diabetes, and hyperlipidemia. Tr. at 1008. He ordered new x-rays and an MRI of Plaintiff's lumbar spine. Id.
Plaintiff complained of arthralgias and chronic joint and back pain on October 12, 2022. Tr. at 958. Dr. Eagerton ordered lab studies. Tr. at 959.
October 21, 2022, Dr. Nwanegwo observed Plaintiff to appear uncomfortable due to pain and to demonstrate decreased ROM in her lower back and slow, stiff gait. Tr. at 1063-64. She counseled Plaintiff on diet and exercise and ordered lab studies. Tr. at 1062.
On October 28, 2022, an MRI of Plaintiff's lumbar spine showed mild degenerative changes with varying degrees of canal and foraminal narrowing. Tr. at 1001. X-rays showed no evidence of dynamic instability and mild L4-5 DDD. Tr. at 1002.
Plaintiff reported severe, chronic lower back pain on November 3, 2022. Tr. at 1047. Dr. Gambacorta noted findings consistent with his prior exams. Id.
Plaintiff described chronic lumbar pain that radiated into her right groin, numbness in her right foot, and weakness in her right leg on November 4, 2022. Tr. at 1011. She indicated physical therapy and steroid injections had been ineffective. Id. Dr. Ellison discussed physical therapy and surgical options and Plaintiff expressed no desire to proceed with pain management therapy or surgery. Tr. at 1012. He referred Plaintiff to a rheumatologist for evaluation for possible fibromyalgia. Id.
On December 2, 2022, and January 13, 2023, Plaintiff's complaints and Dr. Gambacorta's findings and recommendations were consistent with prior exams. Tr. at 1049-54.
Plaintiff complained of joint pain, right groin pain, difficulty sleeping, diffuse pain, migraines, and paresthesia on January 24, 2023. Tr. at 1056. Rheumatologist Wendy Lee, M.D. (“Dr. Lee”), noted the presence of osteoarthritis in Plaintiff's distal interphalangeal joints and crepitus in her bilateral knees. Tr. at 1057. She indicated her exam revealed diffuse tenderness that suggested fibromyalgia. Id. She prescribed Pregabalin 50 mg with instructions to titrate it up from one to three capsules at bedtime. Id.
C. The Administrative Proceedings
1. The Administrative Hearings
a. Plaintiff's Testimony
i. March 4, 2022
At the first hearing, Plaintiff testified she had last worked at a car dealership doing title work in June 2018. Tr. at 38. She stated she had previously worked at Jeb Kuhn Chevrolet as a cashier receptionist, at Nissan World of Denville as a title clerk, and at Neil Johnson Buick as a title clerk. Tr. at 38-39. She said her daily work activities had involved processing online paperwork for departments of motor vehicles (“DMVs”), preparing paperwork and forwarding it to the local DMV branch, filling in for the cashier during her breaks, assisting customers at the counter by processing payments for parts and repairs, packaging contracts, ordering and putting away office supplies, handling payment and processing receipts for wholesale vehicle purchases, and filing paperwork. Tr. at 39.
Plaintiff explained she had been injured in a car accident in 2015 and had required cervical disc replacement with fusion in 2018. Id. She indicated she had returned to work eight or nine weeks following her surgery, but was only able to work for one-and-a-half to two months before her employer let her go due to her frequent breaks and difficulty concentrating and remembering. Tr. at 40.
Plaintiff testified she was in a lot of pain following her surgery and continued to have problems turning her head and picking up items. Tr. at 41. She said she had difficulty remembering and sometimes forgot to brush her teeth, comb her hair, and take her medication. Id. She stated she would be unable to perform her prior work because she could not sit for long periods due to pain in her neck and middle and low back. Tr. at 41-42. She indicated her pain increased when she sat at a computer and looked at a screen. Tr. at 42. She said she needed to get up, move around, and move her neck and back. Id. She stated her standing ability was limited due to plantar fasciitis in her bilateral feet. Id.
Plaintiff estimated she could sit for 20 to 30 minutes at a time. Tr. at 43. She denied the ability to sit for four hours of an eight-hour workday. Id. She said her standing ability was also affected by her low back pain. Id. She estimated she could stand for 15 to 20 minutes at a time. Id. She stated her abilities to stand and walk were about the same. Tr. at 44. She indicated she had to stop and take breaks while walking. Id. She described pain that radiated from her back into her buttocks and down her legs. Id. She denied the ability to stand and walk for four hours in an eight-hour workday. Id. She indicated she elevated her feet in a recliner to take the pain off her lower back for at least three hours per day. Tr. at 44-45.
Plaintiff testified she could focus on a task like putting together a puzzle for about 15 minutes. Tr. at 46. She said she had taken more frequent breaks than normal in her last job. Tr. at 47. She indicated she experienced three to four headaches per week that lasted for at least two hours each time. Tr. at 47-48.
Plaintiff stated her medications sometimes made her feel sleepy and groggy. Tr. at 48. She said she could not pick up anything directly from the ground and could lift only 10 pounds only once or twice a day because of the stress it placed on her lower back. Tr. at 49. She endorsed joint pain in her hips and lower back. Id. She admitted her diabetes, thyroid function, and diverticulosis were controlled. Tr. at 50.
Plaintiff confirmed some days that were better than others. Id. She described a bad day as one in which she slept only a few hours the night before and experienced pain she rated as a seven or eight. Tr. at 51. She indicated her bad days occurred three to four times per week. Id. She said she would not be able to attend work on her bad days. Id.
ii. February 9, 2023
At the second hearing, Plaintiff explained her work as a motor vehicle clerk at a car dealership required she use a computer to input data, facilitate dealer trades, take phone messages, send paperwork to the DMV, perform online DMV transactions, send contracts to banks, and write checks for vehicle payoffs, dealer trades, and other functions. Tr. at 61. She said her prior work as a cashier receptionist had required she sit and stand, process cash payments for tickets and service work, file documents, and take phone messages. Tr. at 61-62.
Plaintiff testified she had stopped working at the car dealership because she had difficulty entering data into the computer and remembering to perform small tasks and send out contracts. Tr. at 62. She said she had had difficulty taking down phone messages, performing calculations in her head, making change, and running credit cards. Id.
Plaintiff stated she had sustained a head injury in a car accident and had blacked out at the time. Id. She noted her doctors had performed some testing as to her head injury, but she could not recall the type of tests performed, and no one had discussed the findings with her. Tr. at 62-63. She indicated she believed her head injury had affected her cognition, memory, and concentration. Tr. at 63.
Plaintiff testified her medications caused side effects that included tiredness, grogginess, difficulty focusing, and sleepiness. Tr. at 64. She stated she sometimes failed to recall information in prior paragraphs as she read a newspaper article. Id. She said she was having difficulty staying on task and remembering things in her last job. Tr. at 64-65. She indicated she had difficulty sitting at her desk for an extended period and required a lot of breaks. Tr. at 64-65. She explained she had to walk around for 10 to 15 minutes at a time to loosen up her back and estimated she was off-task for three hours a day toward the end of her employment. Tr. at 65. She said she had missed days, come in late, and left early due to pain. Id. She indicated she was missing one to two days of work per week toward the end of her employment. Tr. at 65-66.
Plaintiff explained that since the last hearing, she had received injections, attended physical therapy, and received chiropractic care, but her back pain had persisted. Tr. at 66. She said she experienced increased pressure on her lower back when she sat for an extended period of time. Id. She indicated she could walk for 10 to 15 minutes to loosen up her back and return to sitting for 20 minutes or maybe a little longer before she needed to get up and walk around again. Tr. at 66-67. She indicated she would eventually have to lie down and elevate her feet because her pain would be radiating down her back into her feet and legs and causing numbness. Tr. At 67. She denied being able to sit for four hours in an eight-hour workday. Id. She said she would sit for an hour in her recliner if she was in a lot of pain. Id.
b. Vocational Expert Testimony
i. March 4, 2022
Vocational Expert (“VE”) Donna Nealon reviewed the record and testified at the hearing. Tr. at 52-54. The VE categorized Plaintiff's PRW as a typist, Dictionary of Occupational Titles (“DOT”) No. 203.582-066, requiring sedentary exertion per the DOT and medium exertion as performed and a specific vocational preparation (“SVP”) of 3. Tr. at 52. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform sedentary work with occasional postural restrictions, no climbing of ladders, ropes, or scaffolds, and frequent overhead reaching. Id. The VE testified the hypothetical individual could perform Plaintiff's PRW as described in the DOT, but not as she performed it. Tr. at 52-53. The ALJ asked the VE to consider that the individual would be off-task 20% of the time in a routine month. Tr. at 53. He asked if the individual would be able to perform Plaintiff's PRW or any other work in the national economy. Id. The VE stated the individual would be unable to perform any work. Id.
Plaintiff's counsel asked the VE to consider that the individual would have to elevate her legs parallel to the floor for two hours in an eight-hour workday. Id. He asked if the restriction would preclude all sedentary work. Id. The VE confirmed that it would. Id.
Plaintiff's counsel asked the VE if it would preclude all work if the individual were to miss more than one day per month on a consistent basis. Id. The VE testified that if the absences were unexcused, it would not be acceptable. Tr. at 54.
ii. February 9, 2023
VE Mark Pinti testified at the second hearing. Tr. at 68-71. He identified Plaintiff's PRW as a motor vehicle clerk, DOT No. 203.582-066, requiring sedentary exertion and an SVP of 3, and an office clerk at a car dealership, DOT No. 209.562-010, requiring light exertion and an SVP of 3. Tr. at 68. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform sedentary work with occasional postural restrictions and frequent overhead reaching. Tr. at 69. He asked if the individual would be able to perform Plaintiff's PRW. Id. The VE testified the individual would be able to perform work as a motor vehicle clerk, but not as a general clerk. Id.
The ALJ asked the VE if Plaintiff's testimony that she was not allowed breaks during the morning or afternoon was customary in that type of work. Id. The VE stated it was not, as a 15-minute break after two hours of work was customary in nearly all jobs. Id. The ALJ asked the VE if the individual would be able to perform Plaintiff's PRW as actually or generally performed. Id. The VE testified Plaintiff could perform her PRW as generally performed. Id.
The ALJ asked the VE if an individual limited to unskilled work at SVP 2 would be able to perform Plaintiff's PRW. Tr. at 70. The VE stated the individual would not. Id.
Plaintiff's counsel asked the VE to provide his opinion as to when absenteeism would preclude work. Id. The VE testified that employers generally did not allow more than about one absence per month. Id. Plaintiff's counsel asked the VE to provide his opinion as to time off-task. Id. The VE stated an individual who was off-task for greater than 10% of the workday would be unable to complete her tasks on a regular basis. Id.
Plaintiff's counsel asked the VE if it would preclude sedentary work if an individual could not sit for four hours in an eight-hour workday. Id. The VE confirmed it would. Id.
Plaintiff's counsel asked the VE if it would preclude all work if the individual were required to elevate her legs parallel to the floor for two hours during the workday. Tr. at 71. The VE testified it would. Id.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023.
2. The claimant has not engaged in substantial gainful activity since June 15, 2018, the amended alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: spine disorder, plantar fasciitis, and obesity (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, I find the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that she can occasionally bend, balance, crouch, crawl, stoop, kneel, and climb and she can frequently reach overhead.
6. The claimant is capable of performing past relevant work as a clerk/typist (DOT# 203.582-066, S3). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from June 15, 2018, through the date of this decision (20 CFR 404.1520(f)).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from October 23, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. at 12-19.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to provide adequate reasons for his findings as to her subjective complaints; and
2) the ALJ did not consider the consistency of disabling limitations indicated by her medical providers.
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.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Subjective Complaints
Plaintiff argues the ALJ's explanation and summary fail to support his conclusion rejecting her subjective allegations. [ECF No. 16 at 32]. She maintains the ALJ cited a large amount of evidence containing positive and negative findings, but failed to resolve the conflicting evidence and link the evidence and his conclusion. Id. ECF No. 19 at 2-3. She further contends the ALJ mistakenly claimed she had been released from orthopedic care on July 30, 2018, and had not followed up. Id. at 32-33. She notes the ALJ failed to resolve conflicting evidence regarding fatigue and headaches. Id. at 34. She further claims the ALJ cited negative findings and ignored findings that supported her allegations. Id. She asserts the ALJ appeared to be looking for objective evidence of pain. Id. at 34-35. She claims the Commissioner impermissibly relied on evidence the ALJ did not reference to sustain the ALJ's conclusion. [ECF No. 19 at 4].
The Commissioner argues the ALJ properly considered Plaintiff's symptoms, and Plaintiff has failed to identify a material factual mistake in the decision. [ECF No. 18 at 10]. She maintains the ALJ did not err in considering a lack of objective evidence as one factor in evaluating Plaintiff's symptoms. Id. at 11. She contends the ALJ also considered Plaintiff's abilities to walk her dog for exercise, drive, do light dusting, set the table, fold laundry, and do light shopping in evaluating her symptoms. Id. at 11-12.
The regulations specify the ALJ is to consider all the claimant's “symptoms, including pain, and the extent to which [her] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). In Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 95 (4th Cir. 2020), the court explained the required process for evaluating a claimant's subjective symptoms as follows:
When evaluating a claimant's symptoms, ALJs must use the two-step framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). First, the ALJ must determine whether objective medical evidence presents a “medically determinable impairment” that could reasonably be expected to produce the claimant's alleged symptoms. 20 C.F.R. § 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.
Second, after finding a medically determinable impairment, the ALJ must assess the intensity and persistence of the alleged symptoms to determine how they affect the claimant's ability to work and whether the claimant is disabled. See 20 C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step, objective evidence is not required to find the claimant disabled. SSR 16-3p, 2016 WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always be measured objectively through clinical or laboratory diagnostic techniques.” Id at *4. Thus, the ALJ must consider the entire case record and may “not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate” them. Id at *5.
The court further explained:
Since the 1980s, we have consistently held that “while there must be objective medical evidence of some condition that could reasonably produce the pain, there need not be objective evidence of the pain itself or its intensity.” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); see also Craig [k Chater], 76 F.3d [585,] 59293 [(4th Cir. 1996)]; Hines [k Barnhart], 453 F.3d [559,] 563-65 [(4th Cir. 2006)]. Rather, a claimant is “entitled to rely exclusively on subjective evidence to prove the second part of the test.” Hines, 453 F.3d at 565.Id.
Nevertheless, the ALJ is not required to accept a claimant's allegations as to symptoms at face value in all circumstances. Pursuant to 20 C.F.R. § 404.1529(c)(4):
We will consider your statements about the intensity, persistence, and limiting effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and other evidence, in reaching a conclusion as to whether you are disabled. We will consider whether there are any inconsistencies in the evidence and the extent to which there are conflicts between your statements and the rest of the evidence, including your history, the signs and laboratory findings, and statements by your medical sources or other persons about how your symptoms affect you.
Other evidence the ALJ is to consider in making this determination includes: information about the claimant's prior work record; the claimant's statements about her symptoms and their consistency throughout the record; evidence submitted by the claimant's medical sources; observations by medical personnel and others; and factors specifically relevant to pain, including the claimant's ADLs, the location, duration, frequency, and intensity of her pain or other symptoms, factors that tend to precipitate or aggravate her symptoms, the type, dosage, effectiveness, and side effects of medications used to treat symptoms, treatment, other than medication, used to address symptoms, any measures used to relieve symptoms, and any other factors concerning functional limitations and restrictions. 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2017 WL 5180304, at *6-8.
The Fourth Circuit has held that “[a] necessary predicate to engaging in substantial evidence review is a record of the basis of 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, 295 (4th Cir. 2013). An ALJ cannot merely cite evidence he considers “to discredit [the claimant's] testimony” without “build[ing] an accurate and logical bridge from the evidence to his conclusion.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (citing Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ summarized Plaintiff's testimony and found that her “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” Tr. at 14, satisfying the first step of the two-step framework in 20 C.F.R. § 404.1529 and SSR 16-3p. He concluded Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. at 14.
He wrote:
Of note, the claimant's testimony was devoid of any mention of her cervical range of motion. Rather, her testimony was primarily focused on back pain and the side effects of her medication. She was given the opportunity at the hearing to provide additional testimony regarding anything that was not discussed and she declined.Id.
The ALJ further explained:
As for the claimant's statements about the intensity, persistence, and limiting effects of his or her symptoms, they are inconsistent because the objective evidence of record fails to support the degree of limitation alleged. To wit, while the claimant does have a history of spine fusion, she has not required additional interventional treatment and has had generally minimal clinical findings since her surgery.Id. He then proceeded to summarize the evidence, citing positive and negative findings, including Plaintiff's reports, objective test results, and her providers' impressions. Tr. at 14-17.
Plaintiff essentially alleged she was unable to complete a normal workday and workweek because she required frequent breaks, had difficulty remembering, concentrating, and staying on task due to pain and medication-related side effects, and was unable to sit or stand for long periods. Pursuant to SSR 16-3p: “We will explain which of an individual's symptoms were found consistent or inconsistent with the evidence in his or her record and how our evaluation of the individual's symptoms led to our conclusions.” SSR 16-3p, 2017 WL 5180304, at *8. The ALJ's decision contains no such explanation. The only specific reasons the ALJ cited for rejecting Plaintiff's allegations were her lack of testimony regarding limitation to cervical ROM, the fact that she had not required additional surgery after her cervical fusion, and “generally minimal clinical findings.” See Tr. at 14. The undersigned cannot discern how the lack of testimony as to cervical ROM detracted from Plaintiff's allegations as to the intensity, persistence, and limiting effects of her symptoms. The ALJ's reliance on a lack of additional surgery and the “generally minimal clinical findings” suggest he placed undue emphasis on the objective medical evidence.
After noting these specific reasons, the ALJ merely recited the evidence without explaining how that evidence refuted Plaintiff's allegations. “The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10. The Fourth Circuit has “ma[de it] clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The undersigned acknowledges that the ALJ cited more negative than positive findings in reciting the evidence, but cannot find his conclusion supported in the absence of a reconciliation between the evidence and the conclusion.
The undersigned agrees with Plaintiff's arguments that the ALJ factually erred with respect to her treatment with Dr. Bauerle and failed to reconcile and address all evidence, but does not consider it necessary to resolve these issues in addressing his evaluation of her subjective allegations.
The ALJ also failed to adequately address other evidence relevant to an evaluation of Plaintiff's symptoms, including information about her prior work record, her statements as to her symptoms and their consistency throughout the record, her ADLs, characteristics of her pain, factors that tended aggravate her symptoms, information as to her medications, and other treatment she received, including ESIs, physical therapy, and chiropractic manipulations. See 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2017 WL 5180304, at *6-8. Although the ALJ mentioned some of this information in summarizing the evidence, he did not explain how it tended to support or contradict Plaintiff's allegations.
The Commissioner offers an explanation as to how the evidence the ALJ summarized supported his conclusion, but the court cannot accept the Commissioner's rationale in the absence of any such explanation from the ALJ. See Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 109 (4th Cir. 2020) (rejecting the Commissioner's argument as “a meritless post-hoc justification”) (citing Radford, 734 F.3d at 294 (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (“[C]ourts may not accept appellate counsel's post hoc rationalizations for agency action.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)); Snell v. Apfel, 177 F.3d 128, 124 (2d Cir. 1999) (applying Burlington Truck in a Social Security disability case)).
Because the undersigned's review does not reveal the presence of an “accurate and logical bridge” between Plaintiff's allegations and the ALJ's decision to discredit them, remand is required for further explanation.
2. Medical Opinions
On February 11, 2021, Dr. Gambacorta completed a medical opinion form, selecting the following as to Plaintiff's limitations and abilities: stand for 30 minutes at one time; sit for 30 minutes at one time; lift 10 pounds; occasionally bend; occasionally stoop; never balance; occasionally climb stairs; and never climb a ladder. Tr. at 718. He indicated Plaintiff suffered from moderate/severe pain in her back, hips, legs, neck, shoulders, and head. Id. He selected “[p]resent,” as opposed to “absent,” as to the following: “[m]arked deficiencies in maintaining attention and concentration for 2 hours continuously due to pain”; “[m]arked restriction of activities of daily living”; “[m]arked difficulty in maintaining social functioning”; and “[m]arked deficiencies in concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in worksettings or elsewhere) due to impairments, symptoms, and/or medication side effects.” Id. He declined to elaborate in the comments section. Id.
Dr. Gambacorta provided a letter on March 2, 2022, explaining that “to the best of [his] knowledge [Plaintiff] ha[d] not been employed since 2018” and that any reference to “work” in his records “was to indicate her work that she performs in her activity of daily living, such as house work, and work around her home.” Tr. at 928. He wrote: “She has had limited ability to perform full work duty around her home or for her family since her accident.” Id.
On March 23, 2021, Dr. Nwanegwo completed a medical opinion form. Tr. at 720. She opined that Plaintiff had the following limitations and abilities: stand for 30 minutes at a time; sit for 60 minutes at a time; lift 10 pounds; occasionally bend, stoop, balance, and climb stairs; and never climb a ladder. Id. She noted Plaintiff suffered from moderate pain in her back, hips, feet, neck, and shoulders. Id. She selected “[p]resent,” as opposed to “absent,” as to the following: “[m]arked deficiencies in maintaining attention and concentration for 2 hours continuously due to pain”; “[m]arked restriction of activities of daily living”; “[m]arked difficulty in maintaining social functioning”; and “[m]arked deficiencies in concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in worksettings or elsewhere) due to impairments, symptoms, and/or medication side effects.” Id. However, with respect to ADLs, she indicated Plaintiff could do most tasks. Id. She elaborated: “Patient is limited in several physical activities she can't do due to her chronic pain in her body. I feel a full-time job would only worsen her problems.” Id.
Plaintiff argues the ALJ ignored her medical providers' consistent opinions regarding her limitations. [ECF No. 16 at 36]. She maintains the restrictions indicated by Dr. Gambacorta were similar to those provided by Dr. Nwanegwo and the ALJ erred in finding them inconsistent with the record as a whole without considering their consistency with each other. Id. at 36-37. She claims the ALJ did not provide adequate rationale to support his evaluation of the persuasiveness of the opinions. Id. at 37-38; ECF No. 19 at 5-6. She asserts the Commissioner is again relying on reasons not provided by the ALJ in an attempt to convince the court to affirm his decision. Id. at 6.
The Commissioner argues the ALJ appropriately evaluated the medical opinions. [ECF No. 18 at 12]. She asserts the ALJ relied on SSR 06-03p, the fact that Dr. Gambacorta had not seen Plaintiff since 2018, and the lack of support for his opinion in his record and the record as a whole in discounting his opinion. Id. She maintains the ALJ also discounted Dr. Nwanegwo's opinion as inconsistent with her treatment notes that consistently showed normal strength, gait, station, and no mental deficits and the record as a whole. Id. at 13. She claims Drs. Gambacorta's and Nwanegwo's opinions were conclusory and lacked any reasoned explanation. Id. at 13-14.
The applicable regulation provides that an ALJ is to consider the following in evaluating all medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. § 404.1520c(b), (c). However, the ALJ is only required to explicitly address in the decision the supportability and consistency of each medical source's opinion, as these factors are considered most important in assessing its persuasiveness. 20 C.F.R. § 404.1520c(a), (b)(2). The regulations provide that an ALJ should consider a medical opinion more persuasive based on “the more relevant . . . objective medical evidence and supporting explanations” the medical source provides. 20 C.F.R. § 404.1520c(c)(1). In evaluating the consistency factor, the ALJ should consider a medical source's opinion more persuasive if it is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2).
The ALJ has discretion in evaluating the persuasiveness of each medical opinion, but his conclusion as to the supportability, consistency, and overall persuasiveness of each medical opinion must be supported by substantial evidence. Should the ALJ materially err in evaluating these factors, remand may be required. See Flattery v. Commissioner of Social Security Administration, C/A No. 9:20-2600-RBH-MHC, 2021 WL 5181567, at *8 (D.S.C. Oct. 21, 2021) (concluding the evidence did not sustain the ALJ's evaluation of the supportability factor where he ignored the claimant's continuing treatment with the medical provider and portions of the provider's treatment notes), R&R adopted by 2021 WL 5180236 (Nov. 8, 2021); Joseph M. v. Kijakazi, C/A No. 1:20-3664-DCC-SVH, 2021 WL 3868122, at *13 (D.S.C. Aug. 19, 2021) (finding the ALJ erred in assessing a medical opinion in accordance with the regulations because he misconstrued the date the plaintiff last saw the medical provider, neglected the continuing treatment relationship, and erroneously claimed the last treatment visit was prior to the plaintiff's alleged onset date), R&R adopted by 2021 WL 3860638 (Aug. 30, 2021).
The ALJ noted Dr. Gambacorta was a chiropractor and summarized his opinion. Tr. at 18. He wrote:
I find this opinion unpersuasive as a chiropractor is not an acceptable medical source pursuant to SSR 06-3P, as Mr. Gambacorta had not seen the claimant since 2018, and as his assessment is unsupported by the record as a whole. Also found unpersuasive is a March 2022 letter issued by Mr. Gambacorta stating that the claimant has limited ability to perform full work duty around her home or her family since her accident. (Exhibit 21F). Chiropractic notes indicating significant complaints of pain and mobility deficits are inconsistent with the record as a whole.Tr. at 18.
The ALJ was correct that Dr. Gambacorta was not an acceptable medical source under the regulations,as chiropractors are not among the medical professionals considered “acceptable medical sources.” See 20 C.F.R. § 404.1502(a). However, chiropractors qualify as “medical sources” under the regulations, see 20 C.F.R. § 404.1502(d), and opinions from all medical sources, including those that do not qualify as acceptable medical sources, must be considered in accordance with 20 C.F.R. 404.1520c. See 20 C.F.R. § 404.1513(a)(2) (“[A] medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in certain abilities.). Because 20 C.F.R. § 404.1520c(c)(5) permits an ALJ to consider “other factors that tend to support or contradict a medical opinion,” the ALJ was permitted to consider the fact that Dr. Gambacorta was not an acceptable medical source, but he was still required to explain his consideration of the supportability and consistency factors in evaluating Dr. Gambacorta's opinion.
The ALJ erred in relying on SSR 06-03p, as the Commissioner rescinded SSR 06-03p for cases filed on or after March 27, 2017, when she revised the rules regarding evaluation of medical evidence. See 82 FR 5844, 5845, 2017 WL 168819.
Substantial evidence does not support the ALJ's evaluation of the supportability of Dr. Gambacorta's opinion. Dr. Gambacorta's treatment records are labeled “Myrtle Beach Spine Center” and appear in the record at Exhibits 2F, 17F, 19F, and 29F. He conducted physical exams during regular visits in 2018 and between February 2021 and January 2023, noting normal and abnormal findings. The ALJ wrote: “The claimant saw Dr. Gambacorta in 2017 and 2018 and restarted visits in February 2021. (Exhibits 2F, 13F, 17F, and 21F),” but his decision is devoid of any reference to or indication that he considered the objective findings in Dr. Gambacorta's records.
The ALJ made only a conclusory statement that Dr. Gambacorta's “assessment [was] unsupported by the record as a whole. Tr. at 18. He provided no explanation for how the record failed to support Dr. Gambacorta's opinion.
The ALJ separately summarized and addressed Dr. Nwanegwo's opinion. He wrote: “This assessment is found unpersuasive, as it is internally inconsistent with Dr. Nwanegwo's own treatment notes consistently showing normal strength, gait, station, and no mental deficits, and with the record as a whole.” Tr. at 18.
The ALJ erred in evaluating the supportability of Dr. Nwanegwo's opinion. Contrary to the ALJ's assertion, Dr. Nwanegwo's treatment notes do not consistently show normal gait. See Tr. at 1060 (“slow slightly bent over gait”), 1064 (“slow, stiff gait”). The ALJ failed to address observations that were relevant to Dr. Nwanegwo's evaluation of the effect of pain on Plaintiff's ability to perform activities. For example, Dr. Nwanegwo noted reduced ROM in Plaintiff's spine and tenderness in her neck, lower back, left ankle, and hips during exams. See Tr. at 727, 895, 935, 1060, 1064. She described Plaintiff as appearing “chronically ill” and “uncomfortable due to pain.” Tr. at 727, 895, 1063. The Fourth Circuit has warned against this cherry-picking of the record. See Lewis v. Berryhill, 858 F.3d 869 (4th Cir. 2017) (“An ALJ has the obligation to consider all relevant evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
The ALJ again provided a conclusory statement that Dr. Nwanegwo's opinion was inconsistent with the record as a whole, but failed to explain how it was inconsistent. The lack of explanation is concerning in and of itself. However, given that Dr. Gambacorta and Dr. Nwanegwo provided opinions that were generally consistent with one another as to Plaintiff's restrictions, the ALJ's failure to explain his consistency finding is particularly surprising, and leaves the court to guess as to how he arrived at his conclusion.
The Commissioner offers reasons for finding the opinions unsupported and unpersuasive that the ALJ failed to provide. As discussed above, the court cannot affirm the ALJ's decision based on the Commissioner's post-hoc rationale.
For the foregoing reasons, the undersigned recommends the court find the ALJ failed to comply with the requirements of 20 C.F.R. § 404.1520c in evaluating the medical opinions of record.
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).