Opinion
CIVIL ACTION NO. 9:17-1748-RMG-BM
07-31-2018
JAMES C. CAMPBELL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on July 19, 2013 (protective filing date), alleging disability beginning March 20, 2011, due to back problems, left shoulder problems, left knee problems, and arthritis. (R.pp. 26, 250, 257, 286). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on May 18, 2016. (R.pp. 48-84). The ALJ thereafter denied Plaintiff's claims in a decision issued July 25, 2016. (R.pp. 26-40). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-5).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that [he] was disabled during the insured period for DIB may still receive SSI benefits if [he] can establish that [he] is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff then filed this action in United States District Court. Plaintiff asserts that the ALJ's decision is not supported by substantial evidence, and that this case should be remanded to the Commissioner for further proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Medical Record
Plaintiff reported that, prior to his alleged onset date of disability, he hurt his left shoulder (he is left hand dominant) on his job at a packaging company and underwent surgery in 2008. He also underwent surgery on his left knee in July 2009. (See R.pp. 359, 425-426).
From July 2011 through 2012, Plaintiff was treated on six occasions by physician's assistant Michael Bhiro at Laurel Hill Medical Clinic for complaints of 5/10 left and right shoulder pain. Mr. Bhiro noted that Plaintiff had tenderness over his left AC joint and in his lumbar spine, diagnosed Plaintiff with pyogenic arthritis involving multiple sites, and prescribed Lorcet and Mobic. (R.pp. 358-370).
Plaintiff began chiropractic treatment with Raymond H. Stroup, Doctor of Chiropractic, at Palmetto Wellness and Injury Center in November 2012, after an ice machine at a McDonald's restaurant (Plaintiff was filling his cup with ice) fell on him in October 2012, pinning his arms down and causing him pain after he pulled his arms out from under the machine. Dr. Stroup noted that Plaintiff had a reduced range of motion of his cervical, thoracic, and lumbar spines, and ambulated in a restricted and guarded manner. (R.pp. 373-377). Plaintiff's reported pain was reduced to 1/10 mid-back and shoulder and 2/10 neck and lower back a few months later, and Dr. Stroup opined that Plaintiff had a 5% impairment of his whole person on February 11, 2013. (R.pp. 608-612). Plaintiff thereafter continued to visit Dr. Stroup periodically until May 2016, with Dr. Stroup generally noting that Plaintiff exhibited some tenderness in his back and sometimes had muscle spasms. However, there is no indication that Dr. Stroup placed any restrictions on Plaintiff's ability to work. (R.pp. 445-451, 579-644, 728-729).
From March 2013 to February 2016 Plaintiff was treated by nurse practitioner (NP) Sylvia McKoy Watts and other providers at Maxton Family Practice, Marlboro Primary Care Associates, and CareSouth Carolina. Narcotic (Vicodin and Oxycodone, Norco), muscle relaxants (Soma), and nonsteroidal anti-inflammatory (Mobic) medications were prescribed. At various times Plaintiff also received corticosteroid and pain relieving injections. (R.pp. 378-399, 403, 409, 462-44, 468-503, 506-509, 542-568, 570-577).
On August 20, 2013, Plaintiff was treated at an Urgent Care facility for complaints of left shoulder pain after his shoulder popped out of place. He had tenderness to palpation over the anterior aspect of his left shoulder and decreased range of motion. However, an x-ray showed no evidence of dislocation. He was diagnosed with left shoulder pain. (R.pp. 411-413).
On October 1, 2013, Dr. Pravin Patel performed a consultative examination. Dr. Patel found that Plaintiff's cervical spine, right shoulder, elbows, wrists, right knee, hips, and ankles had full range of motion without any swelling, deformity, instability or flexor contractures. However, Plaintiff did have reduced range of motion in his lumbar spine, left shoulder, and left knee, and his left upper and left lower extremity power was reduced at 4/5. Dr. Patel's impression was status post left shoulder rotator cuff repair, lower back pain syndrome, and left knee osteoarthritis - status post arthroscopic repair, and opined that Plaintiff would have trouble reaching overhead due to his left shoulder pain. (R.pp. 425-431). An x-ray of Plaintiff's shoulder that same day showed no evidence of acute fracture or dislocation, while a knee x-ray showed only mild degenerative changes with some mild narrowing of the medial compartment. (R.pp. 423-424).
Psychologist Dr. Katherine J. Kelley performed a consultative examination on October 10, 2013, and diagnosed Plaintiff with adjustment disorder with depressed and anxious mood; rule out opioid dependence; and chronic pain of his left shoulder, left knee, and back. (R.pp. 433-436). Even so, on February 28, 2014, state agency psychologist Dr. Mark Gilson opined after a review of Plaintiff's medical records that Plaintiff had no severe mental impairment. (R.pp. 128-129).
On March 11, 2014, state agency physician Dr. Lina B. Caldwell opined after a review of Plaintiff's records that Plaintiff could perform light work with limitations of never climbing ladders, ropes, or scaffolds; occasionally climbing ramps and stairs, kneeling, crouching, crawling, and balancing; and avoiding concentrated exposure to hazards such as machinery and heights. She also opined that Plaintiff was limited in his ability to reach overhead on the left. (R.pp. 130-133).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b) (2005).
On March 15, 2014, Plaintiff was treated at the emergency department of Scotland Memorial Hospital for complaints of back pain after lifting his mother. An x-ray showed no fracture or dislocation, but it was noted that there was mild spondylosis and osteophyte formation more prominent than a 2010 x-ray, particularly at L2-3 where there was mild space narrowing. Examination revealed some tenderness, as well as pain with straight-leg raise testing. The suspected cause of pain was noted to be muscle strain, and an injection of pain medication (Ketorolac) was administered. (R.pp. 510, 522, 525-528).
From October 2014 to March 2016, Dr. Paul Singh of the Carolina Spine Center treated Plaintiff for complaints of neck and back pain, including pain radiating into his lower extremities. Dr. Singh diagnosed Plaintiff with lumbosacral spondylosis without myelopathy, chronic pain syndrome, and thoracic or lumbosacral neuritis or radiculitis (not otherwise specified). He noted that Plaintiff appeared to be in mild pain, had an antalgic gait, and had a restricted lumbar range of motion. Dr. Singh administered transforaminal lumbar/thoracic epidural injections in October 2014 and October 2015, prescribed increasing dosages of Oxycodone, and prescribed various muscle relaxants. (R.pp. 659-717). He also ordered a lumbar spine MRI, and the radiologist's impression in December 2014 was:
1. Moderate L2-3 disc degeneration with circumferential disk bulging. Broad-based posterior disc protrusion/herniation is noted, accentuated to the right of midline, and contributing to an overall moderate spinal canal stenosis. Diffuse thecal sac effacement is noted at this level worse to the right with possible right L3 nerve root compromise.(R.pp. 670-673).
2. Mild L3-4 and L4-5 disc degeneration with mild annular bulging. Mild canal narrowing at both of these levels with mild inferior foraminal stenoses due to disc bulge. No nerve root displacement.
3. Moderate chronic T12-L1 disc degeneration with anterior disk bulging at and overlying osteophytes. Minor posterior annular bulge near the level of the conus without cord compression.
Plaintiff was treated at the emergency room for chronic lower back pain with acute right leg pain on March 24, 2016. It was noted that Plaintiff had paraspinal tenderness of his lower back area, and he was diagnosed with sciatic on the right side. Pain medication injections were administered, and Plaintiff was advised to continue taking Gabapentin, Percocet, and Valium. (R.pp. 645-657).
Discussion
Plaintiff was forty-six years old on his alleged onset of disability date and fifty-one at the time of the ALJ's decision. He has a high school education (plus three years of college), and has past relevant work experience as a machine operator, material handler, and production supervisor. (R.pp. 39, 52, 73-74, 250, 287). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent his from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.
After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of status-post left rotator cuff injury and dislocation with repair, left medial meniscus tear, arthritis of the left knee, pyogenic arthritis, and obesity (R.p. 28), he nevertheless retained the residual functional capacity (RFC) to perform light work with limitations that he cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, kneel, crouch, and crawl; cannot reach overhead with his left arm; and must avoid working at unprotected heights or around hazardous machinery. (R.p. 32). At step four the ALJ found that Plaintiff was unable to perform any of his past relevant work with these limitations. (R.p. 39). However, the ALJ obtained testimony from a vocational expert (VE) and found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with these limitations, and was therefore not disabled during the time period at issue. (R.pp. 39-40).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Plaintiff asserts that in reaching this decision the ALJ erred by failing to find that his back impairment was a severe impairment, by failing to properly weigh the combination of his impairments in assessing his RFC, and by failing to properly evaluate the opinions of Plaintiff's treating providers. Specifically, Plaintiff contends that the ALJ erred in rejecting the opinions of NP Watts, Dr. Jonathan Rowson, and Dr. George Moore. The Commissioner argues that substantial evidence supports the ALJ's finding that most of the medical opinions of Plaintiff's treating providers were entitled to little weight because they were inconsistent with and unsupported by the record. However, after careful review of the record and consideration of the arguments presented, the undersigned is constrained to agree with the Plaintiff that this case should be reversed and remanded because it is unclear whether the ALJ's decision to discount the medical opinions of record is supported by substantial evidence.
In September 2013, NP Watts wrote that Plaintiff had depression, for which medication was prescribed, but that Plaintiff had no funds for recommended counseling. She indicated that Plaintiff was appropriately oriented, his thought content was appropriate, his attention and concentration were adequate, and his memory was adequate, but his thought process was slowed and his mood and affect were flat. NP Watts opined that Plaintiff had no work-related limitation in functioning due to this medical condition at that time, and that Plaintiff was capable of managing his funds. (R.p. 416). The ALJ gave great weight to this opinion (R.p. 37) and Plaintiff does not appear to be challenging the ALJ's evaluation of this opinion for the time period it covered. Plaintiff does, however, dispute the ALJ's treatment of Watts' opinions from other time periods. See, discussion, infra.
First, on January 10, 2014, NP Watts and Dr. Rowson indicated in a "To Whom it May Concern" statement that Plaintiff had been a patient of theirs for three years; that he suffers from recurrent spontaneous dislocation of his left shoulder, persistent left shoulder pain, thoracic back pain, left knee pain due to a torn meniscus, and chronic depression; and that he was "100% disabled" due to his health condition. (R.pp. 438, 466). On April 17, 2014, NP Watts completed a "Mental & Physical Residual Functional Capacity Questionnaire" in which she stated she had treated Plaintiff monthly since 2011; that he was diagnosed with a left shoulder torn rotator cuff, degenerative disc disease of the thoracic spine, spondylosis of the lumbar spine, and a left knee meniscus repair; he was treated with medication (including Celexa, Doxepin, Hydrocodone, Ibuprofen, and Soma) and chiropractic care with minimal response; that he had the medication side effect of chronic fatigue; and that he had clinical findings of chronic depression. She opined that Plaintiff would constantly experience fatigue or other symptoms enough to interfere with even simple work tasks; could walk zero city blocks without rest; could sit for only ten minutes at a time, stand for only ten minutes at a time, and sit and stand/walk for less than two hours in an eight-hour work day; would need to shift positions at will; would need to take fifteen minute rest breaks ever hour, must use an assistive device with occasional standing or walking, could never lift any amount of weight; could not use his left hand/fingers/arms for grasping/turning/twisting objects, fine manipulations, and reaching; was unable to meet competitive standards as to maintaining regular attendance and performing at a consistent pace; was seriously limited as to the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms; and would be absent from work more than four days per month because of his impairments and/or treatment. (R.pp 512-516).
On April 28, 2016, NP Watts and Dr. Moore completed a Physical RFC Questionnaire in which they wrote that Plaintiff had been diagnosed with a left shoulder torn rotator cuff, lumbar degenerative disc disease and radiculopathy, degenerative joint disease of his left knee, and plantar fasciitis; that his symptoms included lumbar, left shoulder, and left knee pain, fatigue, and depression; that their findings included that Plaintiff had popping and limitation of motion (to less than thirty degrees) in his left shoulder, lumbar pain with paraspinal spasticity, and left knee popping; and that his medications caused fatigue, dizziness, and depression. They opined that for more than three years Plaintiff had limitations including that he would frequently experience pain or other symptoms enough to interfere with the attention and concentration needed to perform simple work tasks; could only tolerate low stress jobs; could walk zero city blocks without rest or severe pain; could only sit for thirty minutes and stand for fifteen minutes at a time; could stand/walk less than two hours and sit about two hours in an eight-hour day; would need to change positions at will; would need hourly unscheduled breaks for fifteen to twenty minutes; would need to elevate his legs with prolonged sitting; must use a cane for occasional standing and walking; could rarely lift up to ten pounds; could only use his left hand to grasp, turn, and twist objects for twenty percent and reach for zero percent in an eight-hour workday; and could reach with his right arm only fifty percent of the day. (R.pp. 718-723). That same day, NP Watts and Dr. Moore completed a Mental RFC Questionnaire in which they stated they saw Plaintiff every four to six months, and that Plaintiff had limitations for more than three years that prevented him from meeting competitive standards as to maintaining regular attendance and punctuality, completing a normal workday and workweek without interruptions from psychologically based symptoms, and performing at a consistent pace without an unreasonable number and length of rest periods. They opined that Plaintiff would miss more than four days of work a month due to his impairments and treatment and could not maintain attention and concentration for simple, routine repetitive tasks for two hours at a time without distraction/inattention. NP Watts and Dr. Moore also thought that Plaintiff's psychiatric condition resulted in heightened symptoms of pain. (R.pp. 723-727, 730-734).
A treating physician's opinion is ordinarily entitled to great weight; see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996)[Noting importance of treating physician opinion]; is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. §§ 404.1527, 416.927. See SSR 96-2p. Under these regulations, a treating source's opinion on the nature and severity of an impairment is entitled to "controlling weight" where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Further, the ALJ is required to provide an explanation in the decision for what weight is given a treating source's opinion and, if rejected, why it was rejected. See 20 C.F.R. §§ 404.1527(c), 416.927(c). However, in analyzing this opinion evidence the ALJ did not state the weight he gave (if any) to the January 2014 opinion of NP Watts and Dr. Rowson. Although it is readily apparent that he at least implicitly give this opinion little weight, as he did conclude that the opinion was not consistent with the medical evidence of record (R.p. 37), "implicit" findings are generally rejected. Cf. Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990) ["Implicit" rejection of treating physician's opinion cannot satisfy Administration's obligation to set forth "specific, legitimate reasons" for rejecting a treating physician's opinion]. Even so, although not listing any weight given, it is again arguable that the ALJ did set forth "specific, legitimate reasons" for rejecting this opinion. Additionally, although not a reason given by the ALJ, the January 2014 letter opinion also appears to be an opinion of disability that is reserved to the Commissioner, as these providers do not specify any limitations but merely state that, in their opinion, Plaintiff is "100% disabled". (R.pp. 438, 466). See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)[physician opinion that a claimant is totally disabled "is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the [Commissioner]"]. Therefore, the ALJ's failure to specifically state what weight he was giving to this opinion would not, in the opinion of the undersigned, by itself be sufficient to warrant a reversal of the decision.
It is noted that for claims filed after March 27, 2017, the regulations have been amended, and that several of the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." 20 C.F.R. § 416.920c (2017). However, the claim and ruling in the present case were filed before March 27, 2017, and Plaintiff's claim has therefore been analyzed pursuant to the treating physician rule set out above. As such, references in this report and recommendation are to the prior versions of the regulations in effect at the time of the ALJ's decision, unless otherwise specified.
Under the new regulations, an advanced practice registered nurse or other licensed advanced practice nurse with another title is considered an acceptable medical source for claims filed after that date. See 20 C.F.R. §§ 404.1502(a), 416.902(a)(2017). However, at the time of the ALJ's decision, a nurse practitioner was not considered an acceptable medical source under the regulations, and NP Watt's opinion is therefore not entitled to controlling weight. See 20 C.F.R. §§ 404.1502, 404.1513(a),(d)(1)[a physician assistant is not an acceptable medical source]; 20 C.F.R. § 404.1527; SSR 06-03p; see also Brewer v. Astrue, No. 11-105, 2011 WL 5553700, at * 4 (E.D.Ky. Nov. 15, 2011)[nurse practitioner is not an acceptable medical source under the regulations.]; Taylor v. Commissioner, No. 07-1023, 2008 WL 2776481 (M.D.Fla. July 15, 2008)[same]; Patton v. Astrue, No. 10-135, 2012 WL 645880, at * 7 (M.D.Ga. Feb. 6, 2012)[ALJ not required to give significant weight to "other source" opinions]. Even so, under SSR 06-03p, opinions from other medical sources such as NP Watts may nonetheless be considered as reflecting the source's judgment about a claimant's symptoms, diagnosis and prognosis, what the individual can do despite the impairment, and physical and mental restrictions. Additionally, two of her opinions were joint opinions with doctors who have been deemed treating physicians.
The ALJ found that this opinion was contradicted by evidence showing that Plaintiff was consistently in no acute distress, and had normal strength, no extremity swelling, no deformity, and no popping. (R.p. 37).
However, with respect to NP Watts' April 2014 opinion and the April 2016 opinion of both NP Watts and Dr. Moore, although the ALJ extensively cited to the medical findings and limitations set forth in these opinions (R.pp. 37-38), he then stated he was giving these opinions "little weight" without explaining the basis for this decision, other than to conclusorily state that they were not consistent with the evidence of record "as noted above" (R.p. 38). No actual comparison, discussion, or analysis of the records to these opinions was made explaining why the ALJ determined they were generally invalid and entitled to "little weight", such that it simply is not clear from the ALJ's cursory dismissal of these opinions whether the decision to give these opinions "little weight" is supported by substantial evidence. See 20 C.F.R. § 416.927(c)(2) [requiring ALJ to give "good reasons" for weight given to treating source's opinion]; see also Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D.N.C. Dec. 20, 2012) [noting that the ALJ need not discuss all the factors, but "must give 'good reasons' for the weight assigned to a treating source's opinion."](citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and SSR 96-2p, 1996 WL 374188, at *5). Therefore, remand is required. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) [noting that "remand is necessary" where the court is "left to guess [at] how the ALJ arrived at his conclusions"]; cf. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
The Commissioner argues that the ALJ properly discounted these opinions because NP Watts and Dr. Moore inconsistently opined in the same questionnaire both that Plaintiff was only able to maintain attention and concentration for thirty minutes to one hour but was unlimited in his ability to maintain attention for two-hour segments. The Commissioner also argues that the ALJ wrote extensively about Plaintiff's wide variety of activities of daily living which "directly conflicted" with Plaintiff's treating providers' opinion that Plaintiff was totally disabled. However, the portion of the decision cited by the Commissioner as support for her inconsistency argument does not contain any such findings by the ALJ, nor does the ALJ state that he discounted these opinions on this basis. (See R.pp. 37-38). Additionally, although the ALJ did discuss Plaintiff's activities of daily living (R.pp. 32-33) and discounted Plaintiff's credibility in part based on these activities (R.p. 34), it does not appear that he discounted the treating provider opinions on this ground. Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)[Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision].
Thus, these arguments by the Commissioner are mere post hoc rationalizations for the decision in this case, since (as previously noted) that is not what the ALJ himself discussed or found in his decision. As such, they are not proper grounds for upholding the decision. See Ellis v. Astrue, No. 07-3996, 2009 WL 578539, at * 8 (D.S.C. Mar. 5, 2009) [Rejecting post hoc rationale for ALJ's decision]. While the ALJ may in fact believe that Plaintiff's impairments were not significant enough to effect his ability to perform the range of work identified and that the opinion evidence at issue was not entitled to sufficient weight to find otherwise, it was incumbent on the ALJ to make that specific finding and explain how the evidence relating to Plaintiff's limitations did or did not effect his ability to perform the range of work identified, and for why these opinion were entitled to little or no weight, and his failure to do so requires a remand for a proper consideration of these issues. Nester v. Astrue, No. 08-2045, 2009 WL 349701, at * 2 (E.D. Feb. 12, 2009) [Noting that the Court "may not consider post hoc rationalizations but must evaluate only the reasons and conclusions offered by the ALJ."].
The Commissioner also provides further arguments for why other evidence noted by the ALJ purportedly conflicts with the treating providers' opinions, including treatment notes documenting a normal gait, x-rays showing no fractures or dislocation, x-rays showing only mild degenerative changes, and treatment notes recording the effectiveness of Plaintiff's medications. However, even if this argument is not an impermissible post hoc rationalization for upholding the decision, this argument fails to acknowledge that Plaintiff's gait was noted to be abnormal on numerous occasions by various providers, including notations from Dr. Singh from October 2014 to March 2016 (indicating that Plaintiff had an antalgic gait and was assisted by a cane in February and March 2016) and that Plaintiff had restricted range of motion of the lumbar spine, and notations from NP Watts in June 2014 that Plaintiff had limited ambulation with a waddling gait (R.p. 562) and in November 2014 that he ambulated with a cane (R.p. 565). Moreover, although x-rays may have only showed mild degenerative changes, the lumbar MRI in December 2014 showed more severe findings. As for the Commissioner's argument that Plaintiff's medications were effective, it is noted that Dr. Singh increased Plaintiff's narcotic medications over time, administered lumbar spinal epidurals, and prescribed additional pain medications due to Plaintiff's continued complaints of pain. It is the ALJ, not this Court in the first instance, who must analyze and compare these records to determine what weight to accord to them and why. Morales v. Apfel, 225 F.3d 310, 317-318 (3d Cir. 2000) [ALJ must explicitly weigh the evidence and explain his rejection of the medical opinion of a treating physician].
Rather than accept or rely on the opinions of these treating providers, the ALJ instead chose to place "great weight" on the opinion of the state agency physicians (in particular, with respect to Plaintiff's physical RFC, Dr. Caldwell). Indeed, the RFC assigned by the ALJ in this decision mirrors the limitations opined to by this non-treating and non-examining physician. However, this March 11, 2014 opinion was rendered prior to Plaintiff's emergency room visit for the back injury incurred by the Plaintiff on March 15, 2014. The state agency physician also did not have records of Plaintiff's medical care after the date of her opinion. Significantly, this later evidence includes a lumbar MRI showing disc extrusion at L2-3, moderate spinal canal stenosis, and moderate chronic T12-L1 disc degeneration with anterior disc bulging, as well as later records from Dr. Singh showing that he treated Plaintiff's back and other impairments with narcotics, epidural spinal injections, and other medications. Finally, the ALJ relied on opinions from the state agency physician that were rendered prior to the April 2014 and July 2016 opinions of NP Watts and Dr. Moore, such that these records showing severe and disabling impairments were obviously not considered by Dr. Caldwell in forming her opinion.
Therefore, the decision should be reversed and remanded for consideration of all of the evidence, including the opinion evidence, in compliance with the applicable regulations. With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for proper consideration of the opinions of record, and for such further administrative action as may be necessary and appropriate. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge July 31, 2018
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).