Opinion
C. A. 2:22-cv-00640-MGL-MGB
04-05-2023
ERIC COLEMAN, Plaintiff, v. KILOLO KIJAKAZI,[1] Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Eric Coleman (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends the Court affirm the Commissioner's decision.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 45 years old on his alleged disability onset date, October 31, 2018. (R. at 16, 26.) Plaintiff claims disability due to, inter alia, heart problems, diabetes, chronic pain, depression, right knee problems, and rupture of left bicep tendon. (R. at 226.) Plaintiff has at least a high school education and has past relevant work as a maintenance mechanic, heavy truck driver, mold operator, cloth Doppler, material handler and refrigeration repairer. (R. at 26.)
Plaintiff filed an application for DIB on November 4, 2019. (R. at 16.) His application was denied initially and on reconsideration. (R. at 16.) After a telephone hearing before an Administrative Law Judge (“ALJ”) on October 4, 2021, the ALJ issued a decision on November 26, 2021, in which the ALJ found that Plaintiff was not disabled. (R. at 16-28.) The Appeals Council denied Plaintiff's request for review, (R. 2-7), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
(2) The claimant has not engaged in substantial gainful activity since October 31, 2018, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: degenerative joint disease of the bilateral knees, status post right ACL repair, degenerative joint disease of the left shoulder, status post left biceps repair, type II diabetes with peripheral neuropathy, left carpal tunnel syndrome, lumbar radiculopathy, varicose veins and obesity (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(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) except that the claimant can occasionally balance, kneel, stoop, crouch, crawl and climb stairs. The claimant can never climb ladders. The claimant can use his left hand frequently to handle and occasionally to reach overhead. The claimant must avoid concentrated exposure to extreme heat, extreme cold and respiratory irritants. The claimant must not be exposed to unprotected heights and dangerous moving machinery. The claimant requires a cane for assistance with ambulation.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on September 28, 1973 and was 45 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563).
(8) The claimant has at least a high school education (20 CFR 404.1564).
(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 the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from October 31, 2018, through the date of this decision (20 CFR 404.1520(g)).(R. at 16-26.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ's decision is not supported by substantial evidence because the ALJ failed to properly consider Plaintiff's subjective complaints. (Dkt. No. 10.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 11.)
A. Standard
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 (S.S.A. Oct. 25, 2017). 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 evaluating the intensity, persistence, and limiting effects of an individual's symptoms, the ALJ should “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. 20 C.F.R. § 404.1529(c)(4) provides that when evaluating a claimant's subjective statements about his or her symptoms, the ALJ “will consider whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest of the evidence, including your history, the signs and laboratory findings, and statements by your medical sources or other persons about how your symptoms affect you.”
In March 2016 the Social Security Administration published SSR 16-3p, 2016 WL 1119029 (2016), which rescinds and supersedes SSR 96-7p, eliminates use of the term “credibility,” and clarifies that subjective symptom evaluation is not an examination of an individual's character. SSR 16-3p applies to determinations and decisions made on or after March 29, 2016. Thus, this regulation applies to the instant ALJ decision, which was decided on November 26, 2021. SSR 16-3p, 2017 WL 5180304, at *13 n.27 (S.S.A. Oct. 25, 2017) (“Our adjudicators will apply this ruling when we make determinations and decisions on or after March 28, 2016.”). Although SSR 16-3p eliminates the assessment of credibility, it requires assessment of most of the same factors considered under SSR 96-7p.
The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig v. Chafer, 76 F.3d 585, 595-96 (4th Cir. 1996), but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2017 WL 5180304, at *6; see also Arakas, 983 F.3d at 95 (“[T]he ALJ must consider the entire case record and may ‘not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate' them.” (quoting SSR 16-3p, 2016 WL 1119029, at *5)).
B. The ALJ's Decision and Relevant Record Evidence
In her decision, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with additional limitations, including that Plaintiff “requires a cane for assistance with ambulation.” (R. at 20-21.) In her discussion of the evidence, the ALJ described Plaintiff's hearing testimony as follows:
The claimant has alleged that he is unable to work due to limitations from degenerative joint disease of the bilateral knees status post ACL repair, degenerative joint disease of the left shoulder, status post left biceps repair, type II diabetes with peripheral neuropathy, left carpal tunnel syndrome, lumbar radiculopathy, varicose veins and obesity; however, the medical evidence of record does not support these allegations. He testified at the hearing that he is unable to work due to leg pain and swelling from knee injury and varicose veins. He testified that he is only able to sit for five minutes, stand for five to ten minutes and walk for five to ten minutes at a time. The claimant testified that he must rest and elevate his legs for five to ten minutes to reduce swelling, and testified that he spends most of the day in bed. He testified that he uses a cane for assistance with ambulation. He testified that he has undergone knee surgery with limited success. The claimant testified that his diabetes hindered the success of his knee surgery. The claimant testified that his high blood sugar also causes blurred vision. The claimant testified that his carpal tunnel has reduced his ability to grasp objects and causes hand tightening. The claimant testified that he is unable to drive or perform household chores, and must rely on his mother to do these tasks. He testified that he must use a cane for balance while showering.(R. at 21.)
After detailing the medical evidence in the record, that ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; . . . 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.” (R. at 25.) The ALJ continued,
As for the claimant's statements about the intensity, persistence, and limiting effects of his or her symptoms, they are inconsistent. The severity of the symptoms and the alleged effect on function is not supported by the total medical and nonmedical evidence, including statements by the claimant and others, observations regarding activities of daily living, and alternations of usual behavior or habits. The claimant reported that he lived with his mother and was able to make the bed, cook, perform self-care and drive a car (Ex. 17F). He was well groomed and appropriately dressed. He reported that he handled his own finances, used a smartphone to access the internet and social media, and spent time reading. He reported that he got along with others. Such a description of the claimant's daily activities and capacity for social functioning suggest a greater capacity tha[n] that alleged by the claimant during the hearing testimony and that would preclude all sustained work activity. These activities suggest a level of concentration inconsistent with a disabling level of pain.
The medical evidence does not support the severity of the claimant's symptoms or limitations as alleged. Although the claimant has received treatment for the allegedly disabling impairments, that treatment has been essentially routine and conservative in nature. The medical evidence of record reflects minimal objective findings of disabling limitations. Additionally, when the claimant is maintained on his medication, his symptoms have improved significantly, according to both his subjective reports and the objective evidence documented during those times. ...
In sum, the above residual functional capacity assessment is supported by the record, when considered as a whole. The objective medical evidence, as detailed above, suggests greater sustained capacity than described by the claimant. Notwithstanding the claimant's allegations, treatment records and examinations do not provide evidence that would reasonably support a finding that the claimant is as limited as alleged. Ultimately, the claimant alleges a greater degree of debilitation than the medical evidence can support.(R. at 25.)
C. Analysis
Plaintiff argues that the ALJ erred in discounting Plaintiff's subjective complaints by “fail[ing] to consider and reconcile the difficulty [Plaintiff] had with his daily activities” and by failing to adequately consider that “surgery was recommended” for Plaintiff. (Dkt. No. 10 at 3235.) As shown above, the ALJ found inconsistencies between Plaintiff's subjective statements and “the total medical and nonmedical evidence, including statements by the claimant and others, observations regarding activities of daily living, and alternations of usual behavior and habits.” (R. at 25.)
Relevant here, the ALJ found inconsistencies when comparing Plaintiff's testimony at the October 4, 2021 ALJ hearing to the observations and Plaintiff's statements contained in an October 7, 2020 consultative mental status examination. (R, at 25, 40, 45-47, 1137-39.) Specifically, the ALJ noted that during the consultative examination, Plaintiff “reported that he lived with his mother and was able to make the bed, cook, perform self-care and drive a car”; he “was well groomed and appropriately dressed”; he “reported that he handled his own finances, used a smartphone to access the internet and social media and spent time reading”; and he “reported that he got along with others.” (R. at 25.) Citing this evidence, the ALJ found the “description of the claimant's daily activities and capacity for social functioning suggest a greater capacity tha[n] that alleged by the claimant during the hearing testimony and that would preclude all sustained work activity. These activities suggest a level of concentration inconsistent with a disabling level of pain.” (R. at 25.)
Plaintiff relies on Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251 (4th Cir. 2017) to argue that the ALJ erred in “simply list[ing] a few of [Plaintiff's] activities without considering the limitations and difficulties he had with those daily activities.” (Dkt. No. 10 at 34-35.) In Brown, the Fourth Circuit vacated and remanded the decision of an ALJ who made inaccurate and unreasonable credibility findings by failing to acknowledge the limited extent of the activities a claimant could perform, and by misrepresenting medical records. 873 F.3d at 269-71. The ultimate issue in Brown was not simply that the ALJ provided a short list of the applicant's activities-such as cooking, driving, doing laundry, collecting coins, attending church, and shopping-but rather that the ALJ's effort was insufficient in establishing whether the applicant could sustain a fulltime job or suffered disabling pain. Id. Here, the ALJ cited Plaintiff's daily activities, as reported to the consultative examiner, for purposes of the subjective symptom determination and not as examples of the functions Plaintiff could perform for an entire day. See Roger S. v. Kijakazi, No. 7:21-cv-00360, 2022 WL 6627144, at *8 (W.D. Va. Aug. 4, 2022) (“Unlike the ALJ in Brown, . . . the ALJ did not rely on minimal daily activities for the finding of non-disability, but used Roger's daily activities as a factor in his assessment of Roger's subjective allegations.”), adopted by, 2022 WL 4003868 (W.D. Va. Sept. 1, 2022).
While Plaintiff asserts the ALJ's analysis here ignored “the limitations and difficulties he had with those daily activities,” the undersigned disagrees. Upon review, the ALJ's references to the statements and observations in the consultative examination were not inaccurate or misleading. Plaintiff argues that the ALJ's finding that Plaintiff can perform “self-care” was flawed because at the ALJ hearing he testified it takes him “a while” to perform tasks such as getting dressed and taking showers. (Dkt. No. 10 at 34; R. at 45.) Here, however, the ALJ was clearly referencing the consultative examination, wherein Plaintiff stated he “is able to attend to his own grooming and hygiene and said that he does okay with it.” (R. at 1139.) Such language can be described as “perform[ing] self care,” as the ALJ stated in her decision. (R. at 25.) Further, the ALJ appropriately compared these statements to Plaintiff's hearing testimony when discounting Plaintiff's subjective testimony. See Ladda v. Berryhill, 749 Fed.Appx. 166, 171 (4th Cir. 2018) (“We are not unsympathetic to the difficulty of articulating a subjective symptom like pain, but the ALJ did not reject Ladda's statements out of hand. Instead, he compared them with the other evidence on the record, including objective medical evidence and Ladda's conflicting statements. The weight he assigned to Ladda's statements after comparing them with other evidence is therefore supported by substantial evidence.”). Also, the ALJ offered additional reasons to discount Plaintiff's subjective statements including: (1) that the “medical evidence of record reflects minimal objective findings of disabling limitations”; and (2) “when the claimant is maintained on his medication, his symptoms have improved significantly, according to both his subjective reports and the objective evidence documented during those times.” (R. at 25.) Plaintiff did not object to either of those findings by the ALJ.
Finally, Plaintiff takes issue with the ALJ's consideration of his treatment history in discounting Plaintiff's subjective complaints. Plaintiff asserts that “although some of [his] treatment may be classified as ‘conservative,' he previously underwent surgery” and more surgery was recommended. (Dkt. No. 10 at 35.). “Although there is no regulatory definition of ‘conservative' medical treatment, it is often considered treatment less invasive than surgery.” Fred A. P. v. Kijakazi, No. 3:21-cv-378 (MHL), 2022 WL 3656855, at *11 (E.D. Va. Aug. 9, 2022), adopted by, 2022 WL 3648182 (E.D. Va. Aug. 24, 2022). Here, Plaintiff appears to argue that the ALJ failed to give enough consideration to his past surgeries and his need for further surgery. In support, Plaintiff largely cites past treatments that were expressly considered by the ALJ in her decision. (See R. at 22 (“The claimant underwent surgical repair of his bicep tendon in November 2018.... In September 2019, the claimant underwent right knee partial meniscectomy and debridement.”); R. at 24 (“The claimant was advised [in October 2020] that he would have to lose weight before he could undergo knee replacement surgery....[In April 2021,] the claimant was advised of surgical options [to treat varicose vein symptoms], but reported he wanted to wait until he underwent right knee surgery in the next two months.”)).
Upon careful review, the record shows the ALJ thoroughly considered Plaintiff's treatment history and ultimately found that it did not support the disabling limitations alleged by Plaintiff. The ALJ credited Plaintiff's subjective complaints by limiting him to sedentary work. Plaintiff's arguments here appear to ask the Court to reweigh the evidence and come to a different conclusion than the ALJ regarding Plaintiff's subjective complaints. In reviewing for substantial evidence, however, the Court does “not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.” See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Further to the extent the ALJ erred in characterizing Plaintiff's treatment as “conservative,” the undersigned does not find this a reversible error, where the ALJ offered numerous other reasons to discount Plaintiff's subjective complaints in accordance with SSR 163p. See, e.g., Goins v. Berryhill, No. 4:16-cv-00056, 2018 WL 4040239, at *12 n.10 (W.D. Va. Jan. 24, 2018), “Even assuming that Goins is correct [that the ALJ failed to adequately assess his activities of daily living], ALJ Mates articulated other legally adequate reasons why he discounted Goins's subjective statements, and those reasons are supported by substantial evidence in the record.”), adopted by, 2018 WL 4039711 (W.D. Va. Aug. 23, 2018).
In sum, upon review of the ALJ's decision and the record, the undersigned finds that Plaintiff has failed to demonstrate that the ALJ's assessment of Plaintiff's subjective complaints is unsupported by substantial evidence or based on an incorrect application of the law.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
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).