Bouchette v. O'Malley

Full title: Joseph Bouchette, Plaintiff, v. Martin O'Malley, Commissioner of Social…

Court: United States District Court, D. South Carolina

Date published: Feb 12, 2024

C. A. 5:23-0002-RMG-KDW (D.S.C. Feb. 12, 2024)

Opinion

C. A. 5:23-0002-RMG-KDW

02-12-2024

Joseph Bouchette, Plaintiff, v. Martin O'Malley, Commissioner of Social Security,[1]Defendant.

KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

KAYMANI D. WEST 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 Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). The issues before the court are whether the decision is supported by substantial evidence, and whether the Commissioner's decision contains an error of law. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.

I. Relevant Background

A. Procedural History

On June 22, 2015, Plaintiff protectively filed an application for DIB alleging a disability onset date of September 30, 2014. Tr. 226-27. His application was denied initially on October 19, 2015, Tr. 115, and upon reconsideration on April 13, 2016, Tr. 131. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 148-49, and a hearing was held on December 7, 2017 before ALJ John Molleur, Tr. 77-98. On April 24, 2018, ALJ Molleur issued an unfavorable decision finding Plaintiff was not disabled. Tr. 7-22. On June 22, 2018, Plaintiff filed a Request for Review with the Appeals Council. Tr. 211-14. After the Appeals Council denied the request for review on March 13, 2019, Tr. 1-5, on May 6, 2019, Plaintiff filed his Complaint in this court seeking judicial review of the Commissioner's administrative determination, Tr. 616-21 (Complaint in C/A No. 5:19-dv-1319-RMG-KDW). Plaintiff also filed subsequent claims for DIB and SSI on May 21, 2019. Tr. 873-99. On July 27, 2020, the District Court filed an order reversing the Commissioner's decision and remanding the case for further administrative action due to the failure of the fact finder to evaluate new evidence submitted to the Appeals Council. Tr. 622-29. Based on the court's order, on October 1, 2020, the Appeals Council vacated the ALJ's final decision and remanded the matter back to the ALJ for further consideration. Tr. 630-32. The Appeals Council noted that Plaintiff filed subsequent claims for disability benefits on May 21, 2019 and determined that its “action with respect to the current electronic claims renders the subsequent claims duplicate.” Tr. 632. The Appeals Council instructed the ALJ to “consolidate the claims files, associate the evidence, and issue a new decision on the consolidated claims (20 CFR 404.952 and 416.1452 and HALLEX I-1-10-10).” Id.

ALJ Tammy Georgian conducted a second administrative hearing on January 12, 2021, Tr. 560-89, and issued an unfavorable decision on February 3, 2021, Tr. 676-93. On August 30, 2021, Plaintiff filed Written Exceptions to the ALJ's decision with the Appeals Council arguing that the ALJ failed to consolidate the evidence from the initial claim and the subsequent claim. Tr. 54951. On October 5, 2021, the Appeals Council issued an order sending the case back to the ALJ finding the ALJ did not comply with its prior order directing the ALJ to consolidate the application for DIB with the subsequent DIB and SSI applications filed in May 2019. Tr. 703-05. The Appeals Council also ordered the ALJ to further evaluate Plaintiff's mental impairments, his residual functional capacity (“RFC”) and, if warranted, obtain supplemental information from a vocational expert (“VE”) regarding limitations on Plaintiff's occupational base. Tr. 704.

ALJ Georgian conducted a third administrative hearing on March 2, 2022. Tr. 540-48. On March 23, 2022 the ALJ issued an unfavorable decision finding Plaintiff was not disabled. Tr. 50929. On March 28, 2022, Plaintiff filed Written Exceptions to the decision arguing that the ALJ failed to develop the record as she did not evaluate Plaintiff's mental impairments as instructed by the Appeals Council. Tr. 855-58. Plaintiff also submitted a general appeal of the decision on April 12, 2022. Tr. 859-61. The Appeals Council issued an order on November 10, 2022 finding that Plaintiff's written exceptions did not provide a basis for changing the ALJ's March 2022 decision and that the ALJ's decision complied with the orders of the U.S. District Court and the Appeals Council. Tr. 497-502. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on January 3, 2023. ECF No. 1.

B. Plaintiff's Background

Born in April 1972, Plaintiff was 42 years old as of his alleged onset date of September 30, 2014. Tr. 254. In his July 16, 2015 form Disability Report-Adult, Plaintiff indicated that he completed the 7th grade, did not attend special education classes, and in 1993 he completed specialized job training in welding. Tr. 258. Plaintiff listed his past relevant work (“PRW”) as welder and laborer for various companies from 1999 to September 2014. Id. He indicated that he stopped working on September 30, 2014 because of his medical condition which he listed as RSD (muscle disease).² Tr. 259. Plaintiff noted that he was 5'7” tall, weighed 135 pounds, and his conditions caused him pain or other symptoms. Id. In a Disability Report-Appeal dated June 7, 2016, Plaintiff's counsel indicated a change in Plaintiff's activities noting that “Claimant has fallen several times and cannot stand for long periods of time due to legs giving out on him. Claimant is now using a cane to ambulate.” Tr. 300.

2 Reflex Sympathetic Dystrophy Syndrome (RSDS), also frequently known as Complex Regional Pain Syndrome, Type I (CRPS). These terms are synonymous and are used to describe a unique clinical syndrome that may develop following trauma. RSDS/CRPS is a chronic pain syndrome most often resulting from trauma to a single extremity. It can also result from diseases, surgery, or injury affecting other parts of the body. Even a minor injury can trigger RSDS/CRPS. The most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone. It is characteristic of this syndrome that the degree of pain reported is out of proportion to the severity of the injury sustained by the individual. When left untreated, the signs and symptoms of the disorder may worsen over time. Social Security Ruling (“SSR”) 03-2p, 2003 WL 22399117, at *1 (Oct. 20, 2003).

Plaintiff completed another Disability Report-Adult on May 31, 2019. Tr. 935. He reported that the highest grade of school completed was the sixth grade, he did not attend special education classes, and he had not completed any type of specialized job training, trade or vocational school. Tr. 937. He listed his PRW as construction welder from January 1985 to May 2013. Id. Plaintiff indicated that he stopped working on May 1, 2013 because of his conditions which he listed as CRPS, RPS entire left side of body, pain stimulator, back problems, and previous left side crush injury. Tr. 936. Plaintiff also indicated as a medical condition that he cannot read or write. Id.

Plaintiff submitted a Disability Report -Appeal on December 13, 2019. Tr. 963-69. Plaintiff indicated a change in his medical condition that occurred in November 2019. Tr. 964. Plaintiff indicated that he continues to have chronic pain and experiences numbness in his hips and legs. Id. Plaintiff noted that he has a “very hard time completing tasks due to limited physical ability and pain.” Id. He also noted that he has a hard time concentrating due to pain and it is difficult to remember and follow instructions. Id. Plaintiff also indicated a change in his activities and described it as follows:

I have a hard time buttoning, tying and zipping, dressing takes longer due to left hand issues, pain. I have a hard time showering takes longer, in a lot of pain, get tired

out. I am not able to do household chores. My family does all the chores. I am not able due to these things due to pain and limited physical ability related to orthopedic issues. Three to four days per week I can barely get out bed, change positions frequently. I do not enjoy hobbies and do not enjoy socializing anymore due to pain and overall not feeling well. I do not like crowds, I get stressed out and overwhelmed.

Tr. 967.

C. The Second and Third Administrative Hearings³

3 A summary of Plaintiff's first administrative hearing on December 7, 2017 before ALJ John T. Molleur is available in C/A No. 5:19-1319-RMG at ECF No. 22. The complete hearing transcript is available at Tr. 77-98.

1. Plaintiff's Second Administrative Hearing

Plaintiff appeared with his attorney for his second administrative hearing on January 12, 2021, before ALJ Georgian in Charleston, South Carolina. Tr. 560-89. VE Marilyn Stroud also appeared and testified. Id. Due to the extraordinary circumstances of the coronavirus pandemic, the hearing was conducted telephonically. Tr. 563.

a. Plaintiff's Testimony

Plaintiff testified that he lived with his wife and ten-year-old son. Tr. 565. Plaintiff stated that his wife worked part-time as a home healthcare worker, and his son attended school virtually. Id. Plaintiff stated his wife was the only household income aside from charitable assistance and food assistance. Tr. 566. Plaintiff testified that he has a driver's license and is able to drive but not far. Id. He stated that he is trying to find a doctor closer to where he lives in Georgetown because his current doctor is in North Charleston and that is too far for him to drive. Id. Plaintiff testified that he did not complete the sixth or the seventh grade, although the ALJ noted that in his prior testimony Plaintiff stated that he finished the seventh grade. Tr. 566-67. Plaintiff testified that he quit school when his parents died and he was at Rosemary Middle School. Tr. 567. Plaintiff confirmed that his last employer was House of Raeford Farms where he was a maintenance man. Id. He confirmed that he worked at 3-D Machinery as a welder. Id. Plaintiff testified that he learned welding from working on construction jobs. Tr. 568. Plaintiff testified that he worked as a pipe welder at Coastal Mechanical and at Southeast Mechanical. Id. He worked as a welder at Andrews Metal Works, at ANS Services, and at Watford Industry. Tr. 568-69.

When asked why he was unable to work, Plaintiff testified regarding his inability to do heavy work and his lack of education. Tr. 570. Plaintiff stated he “can't pick up with [his] left side at all.” Tr. 571. He stated that he has a pain stimulator implanted and has to sit in a chair and charge it for five or six hours every day. Id. Plaintiff testified that he has gout, his “nerves are bad,” and he sometimes feels depressed. Id. Plaintiff testified that he was taking Xanax, but doctors took him off some medications. Tr. 571-72. He stated that he was on Ibuprofen but taking it with his gout medicine caused side effects and made him dizzy. Tr. 572. Plaintiff clarified that he takes gout medication, medicine for high blood pressure, Ibuprofen for pain, and he has a pain patch. Id. Plaintiff testified that he does not smoke. Id. He stated that he used to drink alcohol but he quit about six years ago. Tr. 573. He testified that he has never used recreational drugs. Id.

Plaintiff testified that on a typical day, once he wakes up, he will take a bath, then sit down and watch TV, then brush his teeth and hair, and sit down again. Tr. 573. He goes outside to check on his puppies, and once back inside he will talk on the phone with friends. Id. Plaintiff testified that he does not do any household chores, and his wife does everything. Id. He stated that sometimes his wife helps him get dressed. Tr. 574. Plaintiff stated he is able to put food in the microwave, but he does not do any outside tasks like yardwork or gardening. Id. Plaintiff testified that he uses the internet for YouTube, and he collects old coins. Tr. 575. He stated that he does not belong to any groups but prior to the pandemic he went to church. Id.

In response to questions from his attorney Plaintiff confirmed that he had a spinal cord stimulator implanted. Tr. 575. Plaintiff stated that he thought it was put in three or four years prior and he normally keeps it set on 15 seconds. Id. He stated that it does not ease his pain. Plaintiff testified that it “hurts more having it in than actually helping the pain because of the placement of the battery and the wires [].” Id. Plaintiff stated that he asked his doctors about removing it but they told him that it would do too much damage to him internally if they tried to remove it. Tr. 576-77. Plaintiff recalled taking a functional capacity test and being unable to pick up small items. Tr. 577. Plaintiff testified that because of his nerve pain he is unable to hold anything. Id. He testified that his wife sometimes has to help him with zipping his pants or buttoning a shirt and his son helps with tying his shoes. Id. Plaintiff stated he is unable to reach over his head and he unable to “hold a half gallon of milk over [his] head without dropping it.” Tr. 578. Plaintiff stated that if he dropped something on the floor, he has a “grabber thing” that he uses to “pick things up.” Id. Plaintiff testified that he does not do any kind of exercise, but he will “do a little bit of walking around the yard” although he cannot walk far without needing to sit down. Id. Plaintiff stated he can walk 15 steps before needing to stop and rest. Id. He stated that he would not attempt to stand in a line at the store and if he goes to the store he rides in an electric buggy. Id. Plaintiff testified that he does not help his wife with the dishes because the last time he did he broke one. Tr. 579. Plaintiff stated that he uses paper plates. Id.

Plaintiff confirmed that Dr. Merrill was still his “main doctor,” but he had not seen him since the pandemic because he did not have transportation to get there. Tr. 579-80. Plaintiff acknowledged that he talks to his doctor on the phone. Tr. 580. Plaintiff confirmed that he has been diagnosed with complex regional pain syndrome and has nerve damage on his left side. Id. Plaintiff affirmed that his hand changes color and his hand, arm and shoulders “get real cold.” Id. Plaintiff testified that, generally, when he wakes up in the morning he does not feel good and he has dry mouth. He stated that the “last five years, it's just got[ten] worse.” Id. Plaintiff stated that some days are better than others, and it was better when he had people come over and visit. Id. He stated that he guessed he no longer has visitors “because of all the stuff that's going on in the world.” Id. Plaintiff stated that he still uses Terocin patches and they help “a lot” with his pain. Tr. 580-81. He also stated that he sleeps on a heating pad. Tr. 581. Plaintiff stated that at night he sleeps for 30 minutes in the recliner and then goes to bed because he cannot get comfortable. He stated that he is “constantly up and down, up and down.” Id. He testified that he has his own bedroom. Id.

In response to the ALJ Plaintiff testified that he last saw his primary care physician four weeks prior to the hearing for his gout medicine, and he has “another appointment coming up with her again.” Tr. 582. He stated that he has not seen the orthopedist “in a while because [he] can't get back to him.” Id. Plaintiff stated that they are in the process of sending his records to a doctor in Georgetown to see if that doctor will take him. Id.

b. VE's Testimony

The VE classified Plaintiff's past work as combination welder, Dictionary of Occupational Titles (“DOT”) code 819.384-010, SVP skilled level of 6, generally performed at medium, actually performed at very heavy level; and maintenance manager/supervisor, DOT code 891.137-010, SVP skilled level of 7, generally performed at light level. Tr. 583. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past work history with the following limitations: “Further assume that this individual can do light work. Can never climb ladders, ropes, and scaffolds. Can occasionally stoop, kneel, crouch, and crawl....Can frequently reach with the left upper extremity. And can frequently handle, finger, and feel with the left upper extremity [ ]. And must avoid unprotected heights.” Tr. 583-84. The ALJ asked if the individual would be able to do any of the past work and the VE responded that the welding position would be eliminated but the maintenance supervisor could be performed. Tr. 584. The ALJ asked if there were any other jobs in the national economy the individual could perform and the VE answered affirmatively and provided the following examples: marker, DOT code 209.587-034, SVP of 2, light exertion level, approximately 226,000 in the national economy; laundry classifier, DOT code 361.687-014, SVP of 2, light exertion level, approximately 76,000 in the national economy; and cafeteria attendant, DOT code 311.677-010, SVP of 2, light exertion level, and approximately 105,000 in the national economy. Id.

The ALJ asked if there would be any sedentary jobs available for an individual with the same limitations as in the first hypothetical. Tr. 584-85. The VE responded affirmatively and provided the following exemplar jobs: nut sorter, DOT code 521.687-086, SVP of 2, sedentary exertion level, approximately 12,000 in the national economy; dowel inspector, DOT code 669.687-014, SVP of 2, sedentary exertion level, approximately 81,000 in the national economy; and order clerk, DOT code 209.567-014, SVP of 2, sedentary exertion level, approximately 15,000 in the national economy. Tr. 585. The VE affirmed her testimony was consistent with the DOT. Id.

Plaintiff's counsel asked the VE if any of the identified jobs or past work would be available if the “individual is unable to lift up to ten pounds in weight, and he's also limited to only occasional handling and fingering and reaching with the left upper extremity.” Tr. 585. The VE testified that none of the positions would be available because they “all require frequent.” Id.

Counsel asked if someone with those limitations would be employable and the VE provided three different positions: election clerk, DOT code 205.367-030, SVP of 2, sedentary exertion level, approximately 107,000 in the national economy; credit card call-out operator, DOT code 237.367-014, SVP of 2, sedentary exertion level, approximately 12,000 in the national economy; and surveillance system monitor, DOT code 379.367-010, SVP of 2, sedentary exertion level, approximately 13,000 in the national economy. Tr. 586. Counsel asked the VE for her opinion if the individual would be off task 15% of the workday, and the VE responded that “there would not be any competitive work.” Id. The VE also noted that based on her professional experience, “zero or five percent off-task, you would not be able to maintain competitive employment.” Id.

Plaintiff commented that he was never a maintenance supervisor, and he did not do any paperwork. Tr. 587. The ALJ stated that Exhibit 27F in the file contained a job description from Plaintiff's employer for his job as an industrial maintenance mechanic. Id. The ALJ noted that “under the SkillTran qualifications for that job, they list equipment maintenance, technical understanding technical field. Deals with uncertainty, basic security, power tools, attention to detail, flexibility, supervision, job knowledge, and productivity.” Id. The VE interjected that job description would fall under a different classification of industrial maintenance repairer, DOT code 899.261-014, SVP skilled level of 8, generally performed at a heavy level. Tr. 588. The VE confirmed that the individual “can't do either of the past jobs but could still do the other jobs . . . identified in response to the hypotheticals[.]” Id.

With no further questions, the hearing adjourned. Tr. 589.

2. Plaintiff's Third Administrative Hearing

Plaintiff appeared with his attorney for his third administrative hearing on March 3, 2022, before ALJ Georgian in Charleston, South Carolina. Tr. 540-48. VE Beth Leitman also appeared. Id. Due to the extraordinary circumstances of the coronavirus pandemic, the hearing was conducted telephonically. Tr. 543. Plaintiff's attorney moved to amend Plaintiff's claim to reflect a closed period of disability from September 30, 2014 to September 21, 2021. Tr. 544.

In response to questions from the ALJ Plaintiff testified that he has returned to work. Tr. 545. Plaintiff testified that a friend “created a position” for him as maintenance supervisor coordinator at a wastewater treatment facility. Id. When asked if he could hire and fire employees, Plaintiff testified that he “can recommend the hiring, but [he] can't do that.” Id.

In response to questions from his attorney Plaintiff confirmed that he got the job through someone he knew, and the job did not exist before he started working there. Tr. 546. Plaintiff testified the job involved “[n]o lifting, just teaching.” Id. Plaintiff stated that he works whatever hours he feels like working. Id. When asked about his physical and mental problems Plaintiff testified that his physical problems are “still there” and he is “still hurting.” Tr. 547. He testified that the “pain stimulator is still hurting” and he still has “bad headaches, blurry vision.” Id. As to the mental issues, Plaintiff testified that he is “actually happier.” Id. He stated that he is “actually getting out and sitting” and he is “actually being able to talk to people.” Id.

Counsel had no further questions and confirmed that there were no additional medical records since the last hearing. Tr. 547. There were no questions for the VE and the hearing adjourned. Tr. 547-48.

II. Discussion

A. The ALJ's Findings

In her March 23, 2022 decision, ALJ Georgian 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, 2019.

2. The claimant did not engage in substantial gainful activity from September 30, 2014, the alleged onset date, through September 21, 2021 (20 CFR 404.1571 et seq., and 416.971, et seq.).

3. The claimant has the following severe impairments: complex regional pain

syndrome and degenerative disc disease (20 CFR 404.1520(c) and 416.920(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, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). Specifically, the claimant can lift and carry up to 10 pounds occasionally and lesser amounts frequently, sit for 6 hours in an 8-hour day and stand and/or walk occasionally. The claimant can never climb ladders, ropes or scaffolds and occasionally stoop, kneel, crouch, and crawl. The claimant can frequently reach with the left upper extremity. He can frequently handle, finger, and feel with the left upper extremity. He must avoid unprotected heights.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on April 21, 1972, and was 42 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563 and 416.963).

8. The claimant has a marginal education (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, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from September 30, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 514-15, 518-19, 527-28.

B. 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,” defined as:

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 a continuous period of not less than 12 months[.]

42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(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, 461 n.2 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;⁴ (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520, § 416.920. 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) and § 416.920(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).

4 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); § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (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).

A claimant is not disabled within the meaning of the Act if he/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. § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional 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 the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146. n.5 (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 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); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the 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).

C. Analysis

Plaintiff alleges that (1) the ALJ failed to properly follow SSR 03-2p in evaluating his RSD, (2) the ALJ failed to provide adequate reasons for her credibility determination, and (3) the ALJ improperly evaluated opinion evidence. Pl.'s Br. 2, ECF No. 8.

1. ALJ's Consideration of Plaintiff's RSD/CRPS

Plaintiff argues that despite finding his CRPS is a severe impairment, the ALJ failed to properly evaluate it under SSR 03-2p, and Plaintiff notes that the ALJ never mentioned SSR 032p in her decision. Pl.'s Br. 28. The Commissioner argues there is no requirement that the ALJ specifically reference SSR 03-2p in her decision. Def's Br. 16-17, ECF No. 12. The Commissioner contends that the ALJ followed the guidance of the ruling when she recognized the impairment as severe and she continued to follow the guidance of the ruling in her review of Plaintiff's RFC. Id. at 17. In response, Plaintiff clarifies that he was not suggesting that the ALJ's failure to mention the ruling was reversible error. Pl.'s Reply 2, ECF No. 17. Instead, his argument is that conflicting evidence is not unusual in cases involving CRPS and the ALJ's decision does not show she followed the directives of the Ruling. Id.

SSR 03-2p is the ruling that provides guidance for evaluating RSDS/CRPS. The ruling states that RSDS/CRPS constitutes a medically determinable impairment when it is documented by appropriate medical signs, symptoms, and laboratory findings. SSR 03-2p, 2003 WL 22399117, at *4. The ruling notes that although RSDS/CRPS may be the basis for a disability finding, “[disability may not be established on the basis of an individual's statement of symptoms alone.” Id. The ruling notes that in documenting medical evidence of the impairment “conflicting evidence in the medical record is not unusual . . . due to the transitory nature of its objective findings and the complicated diagnostic process involved. Clarification of any such conflicts in the medical evidence should be sought first from the individual's treating or other medical sources.” Id. at *5. “Claims in which the individual alleges RSDS/CRPS are adjudicated using the sequential evaluation process, just as for any other impairment.” Id. at *6.

At Step Two of the sequential evaluation process, the ALJ determined Plaintiff had the severe impairments of CRPS and degenerative disc disease. Tr. 515. At Step Three the ALJ determined, “[a]fter careful consideration of the entire record,” that Plaintiff had the RFC to perform sedentary work with some specific limitations. Tr. 519. In making her RFC assessment, the ALJ began her discussion of the medical evidence by noting that the evidence confirmed Plaintiff's diagnosis of CRPS and degenerative disc disease. Tr. 520. However, she determined it “does not support a conclusion that the claimant is rendered incapable of work at the sedentary exertional level with the previously detailed postural, manipulative, and environmental restrictions.” Id.

In her discussion of the medical evidence, the ALJ cited records from 2014 where Plaintiff reported back and left arm pain, sought treatment for pain, and had MRIs of his spine. Tr. 520-21. She discussed November 2014 treatment notes where the examining physician found that Plaintiff “did not have any restrictions on his activity from an orthopedic standpoint . . . [and] further reported that no further treatment was needed from a spine standpoint that would benefit the claimant's current complaints (Exhibit 4F).” Tr. 521. The ALJ cited to an April 22, 2015 examination of Plaintiff by orthopedist David H. Jaskwhich, MD. Tr. 521. Dr. Jaskwhich reviewed the April 2, 2015 MRI results of Plaintiff's left shoulder and noted his “symptoms seem to be more in the type of a reflex sympathetic dystrophy, and he recommended an evaluation by [ ] a pain management specialist for a possible stellate block (Exhibit 4F).” Id. (citing record found at Tr. 374). The ALJ noted Dr. Steven B. Storick's July 2015 independent medical evaluation (“IME”) of Plaintiff which found that “the objective findings and the claimant's subjective complaints did not meet the criteria of complex regional pain syndrome (CRPS) at that time (Exhibit 6F).” Id. The ALJ discussed the examination of Plaintiff by Dr. Justin K. Hutcheson in August 2015 and Dr. Hutcheson's conclusion that Plaintiff “met the criteria for CRPS at that time.” Tr. 521-22. The ALJ cited an August 2016 record of Plaintiff's examining orthopedist, Dr. Christopher Merrell, who noted that his “CRPS manifested itself primarily as left shoulder and arm pain and noted there was no structural correlate on the claimant's prior spine imaging (Exhibit 16F).” Tr. 522 (citing record at Tr. 477). The ALJ indicted that in August 2016 Plaintiff's examining orthopedist noted that he “presented with complaints of weakness, tingling and radiation down his left lower extremity” and that he had “failed multiple conservative measures for pain relief but that muscle relaxers had helped somewhat.” Id.

The ALJ discussed the implantation of a spinal cord stimulator in 2017 and the subsequent medical examinations from 2017 through 2020 that showed at various times Plaintiff exhibited some tenderness and pain, and both normal and reduced extremity strength, flexion, and range of motion. Tr. 522-23. The ALJ also discussed the July 2020 consultative examination by Pravin R. Patel, MD where Plaintiff reported upper and lower back pain and left-sided weakness. Tr. 523. Dr. Patel's examination noted that Plaintiff “exhibited reduced range of motion of the cervical and lumbar spine, bilateral shoulders, knees, and hips with positive straight leg raise testis, [however] he exhibited only slightly reduced (4/5) strength throughout the upper and lower extremities, bilaterally. The claimant had only slightly reduced (4/5) grip strength bilaterally with normal fine and gross manipulations bilaterally.” Id. The examination report also noted that Plaintiff ambulated slowly and “did not squat, perform tandem walk, or walk on his heels/toes secondary to his reports of pain (Exhibit 43F).” Id. The ALJ concluded:

While those findings have been considered, as well as the claimant's history of complex regional pain syndrome and spinal disorders, there is no evidence of any objective abnormalities after that time to suggest that the claimant is unable to perform a reduced range of sedentary work with the above postural, reaching, and manipulative limitations. I note that, despite his allegations as to the severity of his pain, the claimant takes only over-the-counter medication for his discomfort and he returned to full-time work in September 2021.

Tr. 523. The ALJ's consideration of the longitudinal record of medical evidence demonstrates her adherence to the cautionary guidelines of SSR 03-2p that symptoms associated with CRPS are transitory and “may remain stable over time, improve, or worsen.” SSR 03-2p at *5. The ALJ included restrictions in her RFC assessment to account for Plaintiff's pain and functional limitations.

The ALJ further considered and weighed the opinion evidence, noting instances where opinions conflicted with evidence related to Plaintiff's CRPS and her reconciliation of the same. Tr. 524-26. For example, the ALJ discussed the December 2014 opinion of Dr. Don O. Stovall, Jr. that Plaintiff “had no restrictions from an orthopedic spine standpoint at that time (Exhibit 4F).” Tr. 524. The ALJ gave this opinion partial weight noting that although the opinion was consistent with Dr. Stovall's expertise in orthopedics, “subsequent medical records indicate that the claimant was diagnosed with CRPS and exhibited tenderness and pain of the cervical spine, reduced strength of the left upper extremity, with some decreased sensation of the fingers, which I have accounted for in limiting the claimant to a reduced range of sedentary work with the above postural, reaching, and manipulative limitations.” Id. The ALJ noted the March 2018 opinion of Dr. Merrell that Plaintiff was “unemployable” and discussed how that opinion was contrary to his treatment notes. Id. The ALJ stated that while she “accounted for Dr. Merrell's objective findings in limiting the amount the claimant can lift, carry, perform postural activities, reach with the left upper extremity and handle, finger and feel with the left upper extremity, little weight has been given to his opinions that the claimant is incapable of all work activity. That opinion is vague and is an issue reserved for the Commissioner.” Tr. 524-25. The ALJ considered the February 2018 Functional Capacity Evaluation (“FCE”) by Robyn Szablewski, PT, and Dr. Merrell's subsequent agreement with that assessment.⁵Tr. 525. The ALJ explained that she “accounted for [Ms.] Szablewski's and Dr. Merrell's objective findings in limiting the claimant to a reduced range of sedentary work with limitations on reaching, handling, and fingering with the left upper extremity[.]” Id. The ALJ further noted that she “assigned great weight to the physical assessments of the State Agency consultants, as they are generally consistent with the other evidence of record and the evidence of the claimant's spinal pain and complex regional pain symptoms.” Tr. 526.

5 The District Court remanded this matter in 2020 due to the failure of a fact finder to consider this “new” evidence that was submitted to the Appeals Council after the ALJ's April 2018 decision.

Here, the ALJ displayed caution when evaluating the medical evidence of record and the medical opinions of doctors. Not only did the ALJ discuss the conflicting opinions, but she gave partial weight to the opinion of a doctor who failed to diagnose Plaintiff with CRPS. She also tailored her RFC assessment based on Plaintiff's CRPS impairment. The undersigned recommends a finding that substantial evidence supports that the ALJ followed SSR 03-2p in evaluating Plaintiff's CRPS.

2. ALJ's Credibility Determination

Plaintiff argues that the “reasons the ALJ offered to support her credibility determination were inadequate based on the record evidence and warrant remand.” Pl.'s Br. 30. The Commissioner asserts that substantial evidence supports the ALJ's decision to discount Plaintiff's subjective allegations that were inconsistent with other evidence in the record. Def.'s Br. 19. The Commissioner outlines 18 bullet points from the ALJ's decision that supports her findings regarding Plaintiff's statements regarding his symptoms. Id. at 19-22.

SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3. In the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . .” Id. at *4. “In considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.

SSR 03-2p discusses how the ALJ is to evaluate a claimant's symptoms once a determination of RSDS/CRPS has been made:

Given that a variety of symptoms can be associated with RSDS/CRPS, once the disorder has been established as a medically determinable impairment, the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities. For this purpose, whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes the medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record. Although symptoms alone cannot be the basis for finding a medically determinable impairment, once the existence of a medically determinable impairment has been established, an individual's symptoms and the effect(s) of those symptoms on the individual's ability to function must be considered both in determining impairment severity and in assessing the individual's residual functional capacity (RFC), as appropriate.

SSR 03-2p, 2003 WL 22399117, at *6 (emphasis added).

a) ALJ's Consideration of Plaintiff's Allegations of Pain⁶

6 The header for this portion of Plaintiff's argument also states the “ALJ failed to consider a possible closed period of benefits.” Pl.'s Br. 31. However, Plaintiff does not discuss this allegation in his Brief nor does he offer any evidence in support of a closed period of disability or the ALJ's failure to consider it. Accordingly, the undersigned will not consider this issue. The undersigned notes that in her Decision the ALJ acknowledged that “claimant has requested a closed period from September 30, 2014, through September 21, 2021, conceding he returned to substantial gainful activity on September 22, [2021] (Exhibit 19D).” Tr. 512.

Here, the ALJ noted that in making her RFC finding she “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p.” Tr. 519. The ALJ outlined the two-step process she had to follow to evaluate the intensity, persistence, and limiting effects of Plaintiff's symptoms. Id. First, the ALJ discussed Plaintiff's testimony from all three administrative hearings which included Plaintiff's descriptions of the pain he experiences, that he uses a “pain patch” and takes Motrin or Ibuprofen for pain, his physical limitations, and his daily activities. Tr. 519-20. The ALJ determined that:

After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Specifically, the medical evidence of record (as summarized below) confirms that the claimant has had treatment for complaints of neck, shoulder and back pain with diagnoses of chronic regional pain syndrome and degenerative disc disease; however, it does not support a conclusion that the claimant is rendered incapable of work at the sedentary exertional level with the previously detailed postural, manipulative, and environmental restrictions.

Tr. 520. The ALJ then outlined the medical evidence and specifically noted Plaintiff's reported instances of pain as follows:

• In August 2014 Plaintiff reported “back and left arm pain, but objective examinations showed the claimant wore a sling and exhibited no other musculoskeletal abnormalities.

• In October 2014 Plaintiff sought treatment for “ posterior neck pain and left periscapular pain as well as left shoulder and arm pain, and mid-dorsal pain. He was diagnosed with brachial neuralgia and left-sided mid-back pain.”

• “December 2014 treatment notes reflect that the claimant exhibited tenderness of the cervical spine and the left shoulder with limited range of motion of both.”

• In April 2015 Plaintiff “sought treatment for left shoulder pain, and he exhibited limited range of motion and tenderness of left shoulder with slightly reduced (4/5) strength to left abduction and flexion.”

• In August 2015 Dr. Hutcheson indicated that Plaintiff “reported pain from his back into his left hand, left chest and scapulae.” Dr. Hutcheson described Plaintiff as in no acute distress. He indicated that Plaintiff's “physical examination was positive for allodynia⁷ and hyperalgesia⁸in the left upper chest/scapular and arm and he had some decrease in range of motion of the left arm as well as weakness in the arm and legs and dystonia in the left neck.” Dr. Hutcheson indicated that Plaintiff “would be a good candidate for spinal cord stimulation (Exhibit 8F).”

• Treatment notes from July 2016 reflect “some pain and tenderness of the cervical spine, and some decreased sensation of the hand. The examining orthopedist noted the claimant's CRPS manifested itself primarily as left shoulder and arm pain ....”

• In August 2016 an examining orthopedist reported that Plaintiff “presented with complaints of weakness, tingling and radiation down his left lower extremity.” He also noted that

multiple conservative measures for pain relief had failed, but “muscle relaxers had helped somewhat.” Plaintiff was described as healthy appearing and in no apparent distress.

• In May 2017 Plaintiff underwent a spinal cord stimulator trial and in June 2017 reported 70% pain relief. During the trial Plaintiff had not taken pain medication and was able to sleep through the night comfortably.

• On July 21, 2017 Plaintiff underwent permanent spinal cord stimulator implantation and in August 2017 Plaintiff “reported that his spinal cord stimulator was working well. While objective examination showed some tenderness and pain of the cervical spine, he had only slightly reduced strength (4/5) of the left upper extremity.

• January 2018 and April 2018 treatment notes reflect that Plaintiff reported the spinal cord stimulator was “working well.” His physical examination revealed some tenderness of the cervical spine with some pain with motion.

• At an October 2019 IME Plaintiff “complained of diffuse pain of the left upper extremity. Otherwise, motor and sensory examinations were intact.”

• March 2020 treatment notes indicate Plaintiff “reported some left shoulder pain but notably, he was not taking any prescribed pain medications at that time, and he indicated he had not taken Ibuprofen in some time.”

• In May 2020 Plaintiff reported that “he went fishing for three days and did not take allopurinol with him, which is when his left knee pain began.” Plaintiff was assessed with gout.

• At a July 2020 consultative examination Plaintiff reported upper and lower back pain and left-sided weakness. Plaintiff “did not squat, perform tandem walk, or walk on his heels/toes secondary to his reports of pain (Exhibit 43F).”

Tr. 520-23. The ALJ noted that despite Plaintiff's “allegations as to the severity of his pain, the claimant takes only over-the-counter medication for his discomfort and he returned to work fulltime in September 2021.” Tr. 523. As indicated in the ALJ's discussion of the medical evidence, she clearly understood that despite the spinal cord stimulator, Plaintiff continued to experience pain. As discussed in the previous section of this Report, the ALJ properly considered the conflicting nature of objective findings related to CRPS. After her discussion of the objective medical evidence, the ALJ reiterated that she found Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 524.

7 Allodynia is the experience of pain from stimuli that is not normally painful. Despite the pain, allodynia is not an increased sensitivity to pain or the result of physical damage. See https://americanmigrainefoundation.org/resource-library/what-to-know-about-allodynia/ (last visited Jan. 12, 2024).

8 “Hyperalgesia is a condition where a person has an increased sensitivity and extreme response to pain. What may not hurt most people can cause severe pain in a person with hyperalgesia. Although there are many potential causes associated with hyperalgesia, the condition is thought to be the result of changes to nerve pathways, which cause a person's nerves to have an overactive response to pain.” See https://www.medicalnewstoday.com/articles/318791 (last visited Jan. 12, 2024).

The ALJ also discussed the opinion evidence and explained how she accounted for the findings of the medical sources. Tr. 524-26. The ALJ concluded by stating:

Based on the foregoing, I find the claimant has the above residual functional capacity assessment, which is supported by the documentation of the claimant's musculoskeletal impairments and subjective reports of pain. I have considered the objective findings in limiting the amount he can lift, carry, perform postural activities, reaching with the left upper extremity, handle, finger and feel with the left upper extremity. Additionally, I have considered his impairments and pain, as well as his history of gout and hypertension in limiting the amount he could be exposed to unprotected heights. However, for the reasons set forth above, I cannot find the claimant's assertion that he could not perform any work-related activity to be consistent with the record as a whole.

Tr. 527 (emphasis added).

“‘In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary.'” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v Chater, 76 F.3d 585, 589 (4th Cir. 1996)). “It is not the proper province of the courts to second-guess the ALJ's credibility determinations.” Chafin v. Shalala, 4 F.3d 984 (4th Cir. 1993). Here, the ALJ's decision reflects that she followed the two-step process in evaluating Plaintiff's symptoms and pointed to evidence in the record to support her conclusion.

b) ALJ's Reliance on Mixed Findings

Citing to SSR 03-2p, Plaintiff also argues that the ALJ should have obtained clarification from Plaintiff's medical sources regarding conflicts in the medical evidence. Pl.'s Br. 31. However, this portion of the ruling relates to conflicting evidence in establishing CRPS as a medically determinable impairment or if the ALJ finds the evidence is inadequate to determine disability. SSR 03-2p, 2003 WL 22399117, at *4-5. In this case, the ALJ determined that Plaintiff had the severe impairment of CRPS and, in making her disability determination, the ALJ did not indicate that she found the evidence inadequate. Tr. 515, 520.

The ALJ's summary of the evidence shows that she considered Plaintiff's subjective complaints of pain as impacted by Plaintiff's CRPS diagnosis and treatment. Stubbs v. Kijakazi, No. 6:20-CV-3606-MGL-KFM, 2021 WL 7286831, at *7 (D.S.C. Sept. 2, 2021), report and recommendation adopted, No. CV 6:20-3606-MGL-KFM, 2022 WL 557479 (D.S.C. Feb. 24, 2022) (finding that the ALJ's decision reflected a balance between the objective evidence and the plaintiff's subjective complaints which comported with Fourth Circuit law, and the ALJ's decision “indicated that he crafted a more restrictive RFC, in part due to the plaintiff's subjective complaints [as well as the complex nature of her CRPS].”). Accordingly, the undersigned recommends a finding that the ALJ properly applied SSR 16-3p and her determination regarding Plaintiff's subjective statements is supported by substantial evidence. Furthermore, the ALJ complied with SSR 03-2p by considering the entire case record when making her credibility finding. As the ruling makes clear, this consideration “includes the medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.” SSR 03-2p, 2003 WL 22399117 at *6.

3. ALJ's Consideration of the Opinion Evidence

Plaintiff argues that the ALJ “failed to properly weigh the consistent opinions of Ms. Szablewski and Dr. Merrell, warranting remand.” Pl.'s Br. 32. The Commissioner asserts that the ALJ's evaluation of the opinion evidence is supported by substantial evidence. Def.'s Br. 23.

Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. §§ 404.1527(b), 416. 927(b).⁹ “Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Statements that a patient is “disabled” or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). “However, opinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.” Id. at *3.

9 For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. §§ 404.1520c, 416.920c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. §§ 404.1527 and 416.927 are applicable.

Generally, the opinions of treating physicians are entitled to greater weight than other evidence. “In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p,¹⁰ 1996 WL 374188, at *4; Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106-07 (4th Cir. 2020). “However, ‘if a physician's opinion is . . . inconsistent with other substantial evidence, it should be accorded significantly less weight.'” Siders v. Comm r of Soc. Sec. Admin., No. 21-2329, 2023 WL 4488259, at *2 (4th Cir. July 12, 2023) (citing Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4)).

10 SSR 96-2p was rescinded effective March 27, 2017 for claims filed on or after March 27, 2017 because of revisions to the final rules including that “adjudicators will not assign a weight, including controlling weight, to any medical opinion for claims filed on or after March 27, 2017.” See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 96-2p is applicable.

If a treating source's opinion is not given controlling weight, then the following factors must be considered with respect to each medical opinion: (1) examining relationship; (2) treatment relationship, including the length of the treatment relationship, frequency of examination, and the nature and extent of the treatment relationship; (3) supportability, that is, the evidence presented to support the medical opinion; (4) consistency, that is, how consistent the medical opinion is with the record as a whole; (5) specialization; and (6) other factors. 20 C.F.R. §§ 404.1527(c), 416.927(c). “While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion. Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021).

The Commissioner asserts that in “reading the ALJ's decision as a whole, it is apparent that the ALJ was aware that Ms. Szablewski was a physical therapist who evaluated Plaintiff one time to complete a functional capacity evaluation, while Dr. Merrell was a treating orthopedist with a longitudinal treatment history with Plaintiff (Tr. 525).” Def.'s Br. 25. The Commissioner also contends that “[g]iven the ALJ's thorough review of Dr. Merrell's treatment notes and Ms. Szablewski's evaluation, it is clear that the ALJ considered the providers specialty, the length of treatment relationships, the frequency of examination, and the nature and extent of the treating relationship (Tr. 525).” Id. In his responsive brief Plaintiff asserts that he does not contend that the ALJ erred in consideration of the factors regarding the treating relationship and specialty of these providers. Pl.'s Reply 6.

While an ALJ is under no obligation to accept any medical opinion, she must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). “Where there are multiple opinions from a single source, an ALJ does not necessarily have to discuss each opinion separately to make clear the weight given it and the underlying reasons.” Bryant v. Colvin, No. 5:11-CV-648-D, 2013 WL 3455736, at *5 (E.D. N.C. July 9, 2013) (citing SSR 96-2p, 1996 WL 374188, at *2). “‘[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ ‘give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity.” Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015).

a) Opinion of Robyn Szablewski, PT¹¹

11 Ms. Szablewski was not one of Plaintiff's treating providers, she is a physical therapist who was requested to conduct an FCE. Under the regulations in effect at the time of Plaintiff's claim, a physical therapist was not an acceptable medical source, but was considered an “other source.” 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). These regulations were revised effective March 27, 2017; as Plaintiff's claim was filed prior to that date, the earlier version of the regulations is applicable.

On February 13, 2018, physical therapist Robyn Szablewski conducted an FCE of Plaintiff at the request of Dr. Christopher A. Merrell. Tr. 1012-35. The FCE indicated that the reasons for the referral were to answer the following five questions:

1. Did [Plaintiff] provide high levels of physical effort through-out the testing day?

2. Are [Plaintiff's] reports of pain and disability reliable? If not reliable, is there a pattern to less-than-reliable reports?

3. Is [Plaintiff] capable of performing his pre-injury job as an Industrial Maintenance Mechanic I?

4. What are [Plaintiff's] physical work tolerances in Department of Labor terminology?

5. Did [Plaintiff] demonstrate safe work habits?

Tr. 1013. Her evaluation consisted of an intake interview and a series of standardized tests. Id. Her findings indicated that Plaintiff's perceived ability was consistent with his demonstrated abilities of less than sedentary capacity. Tr. 1017. Ms. Szablewski determined that Plaintiff was “not capable of performing the physical demands of the target job of Industrial Maintenance Mechanic.” Id. She also found that in regard to physical tolerances, Plaintiff demonstrated a less than sedentary capacity and “[p]ositional limitations were demonstrated in standing, handling, reaching, climbing, walking, low level work and overhead work.” Id.

b) Dr. Christopher Merrell's December 2020 Statement¹²

12 In his Brief, Plaintiff takes issue only with the opinions Dr. Merrell outlined in the December 2020 Statement which the ALJ addressed in conjunction with her consideration of Ms. Szablewski's FCE. However, the ALJ separately addressed other opinions of Dr. Merrell including that Plaintiff is “incapable of all work activity” and she gave little weight to that opinion finding it vague, an issue reserved for the Commissioner, and “not consistent with the other medical evidence of record, which reflects no significant strength deficits or gait abnormalities after the claimant's spinal stimulator implant (Exhibit 26F).” Tr. 524-25.

On December 28, 2020, Dr. Merrell signed a statement prepared by Plaintiff's counsel. Tr. 1187-88. The statement indicated that Dr. Merrell was a “physical medicine and rehabilitation specialist” and that he treated Plaintiff from July 2016 through February 2018 for “injuries secondary to a [2014] workers compensation injury[,]” noting that Plaintiff's condition was diagnosed as CRPS. Tr. 1188. The statement referenced an opinion in March 2018¹³that Plaintiff had a 40% permanent impairment to his left upper extremity as part of a workers compensation claim. Id. The statement noted Plaintiff's February 2018 FCE and indicated the following:

13 Dr. Merrell did not see Plaintiff in March 2018; this notation is from his February 28, 2018 encounter with Plaintiff that he reviewed and signed on March 1, 2018. Tr. 1078-79.

The results were noted to be near valid and I would agree that this was a valid test. The FCE assessment noted that he was only able to stand for about 3 minutes (with dynamic and static standing) before needing to sit down. He could only walk for about 4 minutes at a time with significant instability. He was unable to lift 10 pounds from either floor to waist or waist to shoulder. He was unable to carry 10 pounds. The lifting and carrying problems that [Plaintiff] experienced was due to lack of grip using the left upper extremity. I agree with these functional limitations. He would be limited to occasional fingering and handling using his left hand though I am not as sure about his limitations using his right hand since they do not clinically correlate with what I found. The limitation to occasional fingering and handling using his left hand is consistent with my objective clinical findings which found motor abnormalities in the left extremities. For example, on 8/29/17, I found decreased sensation of the radial forearm, thumb and index finger, middle finger, 4th and 5th digits, ulnar hand, and distal forearm. The left wrist flexion was noted at 4/5. Extension of the left triceps and biceps was 4/5. Color changes were noted in his left hand. Similar observations were noted on 1/2/18 and 2/28/18.

Tr. 1188. Dr. Merrell indicated that the “limitations are permanent and they are consistent with my statement in 2018 where I stated that he would have to go to pain management every 3 to 6 months on an ongoing basis.” Id.

c) ALJ's Consideration of Opinions of Ms. Szablewski and Dr. Merrell

The ALJ gave “partial weight” to Ms. Szablewski's FCE to the extent she opined that Plaintiff could not return to his past work. Tr. 525. The ALJ noted that she accounted for both Ms. Szablewski's and Dr. Merrell's objective findings in “limiting the claimant to a reduced range of sedentary work with limitations on reaching, handling, and fingering with the left upper extremity[.]” Id. However, the ALJ assigned “little weight” to their opinions “to the extent that they indicated the claimant has greater limitations than those set forth in the above residual functional capacity assessment for a reduced range of sedentary work.” Id. The ALJ cited to Dr. Merrell's January and April 2018¹⁴ treatment notes that indicated Plaintiff's spinal cord stimulator was working well, and the physical examination that revealed “some tenderness of the cervical spine with some pain with motion but he had full flexion, extension and rotation. The claimant exhibited only slightly reduced strength (4/5) of the left upper extremity and wrist with range of motion and full (5/5) strength on the right.” Id. The ALJ noted that Dr. Merrell's treatment notes indicated that Plaintiff “continued to exhibit some decreased sensation of the forearm and fingers and mild hand swelling on the left, but Dr. Merrell did not document any specific manipulative limitations in his treatment notes, such as difficulty making a fist, etc. (Exhibits 25F and 26F)¹⁵” and that “treatment notes dated after April 2018 do not reflect any increased strength deficits, manipulation deficits or gait abnormalities, and the claimant indicated he takes only over-the-counter pain medications.” Id.

14 Dr. Merrell did not examine Plaintiff in April 2018; this is a notation from his February 2018 examination. Tr. 1077.

15 Exhibit 25F is Dr. Merrell's treatment note from August 22, 2018. Tr. 1065-68. In his review of symptoms he noted that Plaintiff “reports muscle aches, arthralgias/joint pain, and back pain but reports no muscle weakness and no swelling in the extremities[.]” Tr. 1067. In his assessment Dr. Merrell noted that Plaintiff “remains at [maximum medical improvement]. Future medical includes nsaids (motrin), [spinal cord stimulator] maintenance and replacement if needed, future pain mgmt. office visits q3-6 months.” Tr. 1068. Exhibit 26F contains Dr. Merrell's office treatment and prescription records from January 2, 2018, February 28, 2018, and August 22, 2018. Tr. 1072-1112 (Note: Tr. 1084-1107 is a copy of Ms. Szablewski's FCE, and Tr. 1108-09 is job description for Industrial Mechanic I from House of Raeford Farms, Inc.). Dr. Merrell's January 2, 2018 treatment note assessed Plaintiff with CRPS after work trauma, and left shoulder and arm pain. Tr. 1082. He noted Plaintiff's treatment for pain and indicated that his spinal cord stimulator needed “reprogramming.” Id. He ordered an FCE for RTW (return to work) guidance. Id. On February 28, 2018, Dr. Merrell's assessment indicated that the spinal cord stimulator was “reprogrammed with adaptive stim and is working much better now.” Tr. 1078. The note also indicated that he did not feel Plaintiff was employable and recommended disability; Plaintiff was at maximum medical improvement with a 40% impairment rating to his left upper extremity. Id. This exhibit also contained a copy of the same August 22, 2018 treatment record as in Exhibit 25F.

The ALJ discussed treatments notes of Dr. Merrell and other treating medical sources¹⁶from August 2018, October 2018, March 2019, March 2020, May 2020, and September 2020 which reflected that Plaintiff exhibited normal motor strength of the upper and lower extremities with intact sensation, he reported some left shoulder pain but was not taking any prescribed pain medications and indicated he had not taken Ibuprofen in some time, and he exhibited full range of motion of the neck and no abnormalities of the upper extremities. Id. (citing Exs. 27F and 28F). Based on these findings the ALJ gave “little weight” to Ms. Szablewski's and Dr. Merrell's opinions “as they are not consistent with the objective evidence of record.” Id. The ALJ also determined:

16 The other treating providers in the records cited by the ALJ include providers at St. James-Santee Family Health Center: Nurse Practitioner Sherrie Richardson, Dr. Lola Burke, Dr. Betty A. Jones, and Dr. Michael Torkelson. Tr. 1163-86.

Additionally, in terms of Dr. Merrell's statement that the claimant would be off task more than 15% of the workday due to his chronic pain, there are no significant concentration deficits documented upon any psychological evaluation or in treatment notes to support that statement, and the claimant's use of only ibuprofen suggest his pain was not significantly limiting (Exhibit 29F). According, I have assigned their opinions some weight as to their limitations with handling/finger with the left upper extremity but have assigned their opinions little weight in regard to the amount of time the claimant would be off task.

Tr. 525-26.

d) Discussion

Plaintiff argues that Ms. Szablewski's and Dr. Merrell's “consistent opinions support disabling limitations.” Pl.'s Br. 33. The Commissioner contends “as the ALJ explained (Tr. 525), the opinions from Ms. Szablewski and Dr. Merrell were unsupported by and inconsistent with the record evidence.” Def.'s Br. 26. In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.

Here, the ALJ gave little weight to the opinions which indicated Plaintiff had greater limitations than those set out in her RFC assessment. Tr. 525. Ms. Szablewski opined, and Dr. Merrell concurred, that Plaintiff would be limited to performing less than sedentary work and he would be incapable of performing the physical demands of his prior job as Industrial Maintenance Mechanic. Tr. 1017. Ms. Szablewski's testing indicated Plaintiff could stand for only three minutes, walk for four minutes, and sit for 28 minutes which did not meet the job demand for Plaintiff's past work. Tr. 1014. Ms. Szablewski's testing indicated Plaintiff was unable to perform ten-pound lifting and carrying due to lack of grip with his left upper extremity and therefore could not meet the weight/force demands of his past work. Id. In his statement regarding the FCE, Dr. Merrell seemed to focus only on the lifting and carrying limitations and fingering and handling with the left hand. Tr. 1188. He cited to his treatment records supporting these limitations. Id. In her discussion of these opinions, the ALJ stated that she “accounted for [their] objective findings in limiting the claimant to a reduced range of sedentary work with limitations on reaching, handling, and fingering with the left upper extremity.” Tr. 525. However, the ALJ did not agree with the limitations on standing, walking, and sitting. In her RFC assessment the ALJ indicated Plaintiff could “lift and carry up to 10 pounds occasionally and lesser amounts frequently” and he could “frequently reach with the left upper extremity” and could “frequently handle, finger, and feel with the left upper extremity.” Tr. 519. Plaintiff has not disputed this RFC finding. In addition to determining that Plaintiff could perform a reduced range of sedentary work, Tr. 519, the ALJ found Plaintiff is “unable to perform any past relevant work as actually or generally performed[,]” Tr. 527. This comports with the FCE finding. As a physical therapist, Ms. Szablewski is not an acceptable medical source, however the ALJ considered her opinion and discussed the weight she gave to various portions of the opinions contained in the FCE. Tr. 525. The ALJ discussed the evidence and how she accounted for the objective findings in the opinion. Id.

In his statement Dr. Merrell, in addition to finding the FCE results “near valid,” also opined that Plaintiff “would have been off task more than 15% of the working day due to his chronic pain.” Tr. 1188. The ALJ gave this little weight noting that “there are no significant concentration deficits documented upon by any psychological evaluation or in the treatment notes to support that statement, and the claimant's use of only ibuprofen suggest his pain was not significantly limiting (Exhibit 29F).” Tr. 525-26.

Plaintiff offers arguments for why the case should be remanded-namely because notations that he was doing well following his spinal cord stimulator do not “disprove” the opinions, “select normal findings are not inconsistent with a finding of disability[,]” Dr. Merrell's silence on manipulative limitations “is not the same as inconsistency,” and although the ALJ indicated Plaintiff took only over-the-counter medications, nothing required him to take any particular medication before the opinions could be believed. Pl.'s Br. 37-39. The Commissioner argues that the ALJ “properly followed the regulations and explained in detail her rationale behind affording these opinions only partial weight, and her conclusions enjoy the support of substantial evidence.” Def.'s Br. 23. Citing to the regulations, the Commissioner asserts that it is “the ALJ's job, and hers alone, to evaluate the evidence and decide the weight a physician's opinion deserves and Plaintiff's ultimate RFC.” Id. at 24 (citing 20 C.F.R. §§ 404.1546 (c), [416.946(c)], and §§ 404.1545(a), [416.945(a)]).

The undersigned agrees with Plaintiff that while the record notes his spinal cord stimulator was “working well,” he also continued to have pain requiring medication. The ALJ did not ignore these findings either, but she explained that while Plaintiff reported left shoulder pain, he “was not taking any prescribed pain medications at that time. In fact, he indicated he had not taken Ibuprofen in some time, suggesting his pain symptoms were not significantly limiting.” Tr. 525. Plaintiff takes issue with the ALJ's reference to “select normal findings” however, in her discussion of the opinions the ALJ cited to same records that Dr. Merrell cited in his statement (Tr. 1188) and cited by Plaintiff in his Brief (Pl.'s Br. 37) pointing out where there were contradictory findings. Tr. 525. Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d at 107 (finding lack of support from other objective evidence in the record is not necessary, “[r]ather, the opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.”)(emphasis in original).

As to the issue of finding no manipulative limitations, while the ALJ noted that Dr. Merrell did not document any specific manipulative limitations she prefaced that statement by noting that Plaintiff “continued to exhibit some decreased sensation of the forearm and fingers and mild hand swelling on the left[.]” Id. The ALJ added that treatment records reflected no manipulation deficits, strength deficits or gait abnormalities and indicated Plaintiff exhibited normal motor strength of the upper and lower extremities with intact sensation. Id.

While Plaintiff takes issue with the ALJ's evaluation of the medical opinions, he does not argue that the ALJ failed to follow the regulations nor does he explain the impact of his concerns on the ALJ's decision other than stating that the “record contains multiple opinions supporting limitations greater than those found by the ALJ.” Pl.'s Br. 32. Clearly Dr. Merrell's opinion that Plaintiff is permanently disabled is incorrect as Plaintiff returned to work as a maintenance supervisor coordinator. See Tr. 545 (Plaintiff's March 2022 hearing testimony). It is Plaintiff's burden to present evidence of disability. 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”); 20 C.F.R. §§ 404.1512(a), 416.912(a) (generally setting forth a claimant's burden to produce evidence of a disabling impairment and the Agency's right to deny a claim for lack of evidence); Blalock v. Richardson, 483 F.2d at 774. Furthermore, Plaintiff has not shown how remand of the decision for further consideration of the opinions of Ms. Szablewski and Dr. Merrell would affect the ALJ's finding of non-disability. Remand on that point would amount to an empty exercise.¹⁷

17 See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming denial of Social Security benefits where the ALJ erred in pain evaluation because “he would have reached the same result notwithstanding his initial error); see also Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (holding that a remand is not necessary if it would “amount to no more than an empty exercise”); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result.”).

The issue is whether the ALJ's decision is supported by substantial evidence, not whether a different conclusion could be supportable. The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “An ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel, 166 F.3d 1209 (4th Cir. 1999) (per curiam) (unpublished) (internal citation & quotation omitted). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.

“When, as here, an ALJ denies a claimant's application, the ALJ must state ‘specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision.” Sharp v. Colvin, 660 Fed.Appx. 251, 257 (4th Cir. 2016). In Sharp, the Fourth Circuit determined that the “ALJ did not summarily conclude that [the doctor's] opinion merited little weight” because the ALJ explained why he discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id. Here, the ALJ provided a narrative discussion of how the evidence supported her conclusion. Accordingly, her analysis is complete and allows for meaningful review. See Arakas v. Comm 'r, Soc. Sec. Admin., 983 F.3d at 106.

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 undersigned finds that the Commissioner performed an adequate review of the whole record and that the decision is supported by substantial evidence.

Accordingly, 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 the Act, it is recommended that the Commissioner's decision be affirmed.

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.”