Opinion
Civil Action No. 6:17-2480-RBH-KFM
10-12-2018
Princella Elmore, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on March 21, 2013. She also filed an application for supplemental security income ("SSI") benefits on February 17, 2015. In both applications, the plaintiff alleged that she became unable to work on April 30, 2012. Both applications were denied initially and on reconsideration by the Social Security Administration. On July 31, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, her attorney, and William W. Stewart, Ph.D., an impartial vocational expert, appeared on July 18, 2016, at a hearing in Columbia, South Carolina, considered the case de novo, and on September 26, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 21-34). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on July 13, 2017 (Tr. 1-3). The plaintiff then filed this action for 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, 2017.
(2) The claimant has not engaged in substantial gainful activity since April 30, 2012, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: right cervical facet arthropathy with radiculopathy and reflex sympathetic dystrophy; cervical degenerative disc disease and spondylosis; status post right carpal tunnel syndrome release; lumbago; scoliosis; obesity; affective disorder; and somatoform disorder (20 C.F.R. §§ 404.1520(c), 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except for the following limitations: no lifting or carrying over 20 pounds occasionally and ten pounds frequently; no standing or walking over six hours in an eight-hour workday; no sitting over six hours in an eight-hour workday; no more than occasional pushing or pulling with the right, dominant, upper extremity; no more than occasional climbing of ramps or stairs; no more than occasional balancing, stooping, kneeling, or crouching; no climbing of ladders, ropes, or scaffolds; no crawling; no more
than frequent reaching in all directions with the right, dominant, upper extremity; no more than frequent handling with the right, dominant, hand; the avoidance of hazards such as working at unprotected heights and around moving mechanical parts; only simple and routine tasks; only work that requires concentration, persistence, and pace for two-hour periods during the day; and no more than occasional interaction with the public.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on February 1, 1971, and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 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 C.F.R. 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 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from April 30, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 41 years old on her alleged disability onset date (April 30, 2012) and 45 years old at the time of the ALJ's decision (September 26, 2016). She completed high school and has past work experience as a machine assembler, testing operator, assembler, and quality control tester (Tr. 33, 217).
On March 26, 2012, the plaintiff was seen at Carolina Musculoskeletal Institute ("CMI") for an injection in her subdeltoid bursa to try to alleviate some of her pain (Tr. 315). On April 18, 2012, she had right shoulder pain, and she was wearing a sling. An MRI of her shoulder showed tendinitis, and an MRI of her neck showed minimal disc disease at C5-C6. She did not have significant relief from an epidural steroid or subdeltoid shots. Douglas D. Holford, M.D., prescribed Neurontin. On examination, she had diffuse tenderness about her shoulder (Tr. 314).
On April 7, 2012, the plaintiff was seen at the Spine Doctors of Aiken for neck, shoulder, arm, and back pain. She was diagnosed with a hypolordosis cervical spine, foraminal encroachment of the C3/C4 joint space, scoliosis in the lumbar spine, and foraminal encroachment of the L5/S1 joint space (Tr. 354). She went to physical therapy from April 2012 to February 2013 (Tr. 355-62).
On May 16, 2012, the plaintiff was still using a sling on her right shoulder. EMG and nerve conduction studies showed mild carpal tunnel syndrome, which "is not causing [the plaintiff] any discomfort." Dr. Holford recommended epidural steroids (Tr. 313). On June 25, 2012, the plaintiff had not yet been approved for epidural steroids. Dr. Holford wrote that it was time to get the plaintiff out of her sling. She was starting to develop paresthesias in the left arm, and she had pain and tenderness across her shoulder (Tr. 312).
On July 11, 2012, the plaintiff saw Russell K. Daniel, M.D., who also recommended a cervical epidural steroid injection. The plaintiff described pain in her right shoulder that radiated to her right elbow. She also reported numbness and tingling in her left hand but denied weakness. She alleged onset in July 2011, when she heard a "pop" in her shoulder and neck, followed by acute pain in her right shoulder radiating to her right elbow. Dr. Daniel reviewed image studies showing a mild cervical abnormality; he also reviewed an EMG study that did not show radiculopathy. Dr. Daniel did not perform a physical examination (Tr. 318).
On July 31, 2012, Dr. Daniel reviewed MRI imaging that showed mild to moderate cervical disc disease. The plaintiff was in miserable pain. She did not get dramatic improvement from the first cervical injection. She was still having pain in her triceps, the ulnar forearm, and down into her hand and fingers. She had allodynia in her right shoulder and hand. Dr. Daniel did not perform an examination. He wrote that the plaintiff might need surgery, but that a delay was warranted based on the lack of objective findings. The notes from this visit contradict the notes from three weeks' prior, insofar as Dr. Daniel noted "an EMG proven radiculopathy in [the plaintiff's] right upper extremity." Dr. Daniel gave her another cervical injection and changed her pain medications to hydromorphone (Tr. 316). On August 6, 2012, she reported minimal relief from two cervical injections. She described feeling "miserable" to Dr. Daniel. She reported allodynia in her right shoulder and hand. Dr. Daniel wrote: "MRI results are not clearly delineating source of her pain." He recommended a myelogram (Tr. 317).
On August 8, 2012, Dr. Holford wrote that the myelogram showed disc disease at C4-5 and C5-6, going toward the left. She was still wearing her sling and reporting severe pain. A shoulder arthroscopy was considered, but Dr. Holford advised against it with a note that the plaintiff would be "worse off" after an arthroscopy (Tr. 311). On August 22, 2012, the plaintiff had pain, tenderness, and paresthesias in her hand. A carpal tunnel release was planned. Her neck continued to bother her, and it was noted this might require a C5-C6 fusion in the future. Dr. Holford wrote that he would "move slow in this regard" (Tr. 310). On September 18, 2012, the plaintiff was seen by Clark Moore, M.D., after her carpal tunnel release. She was still in a fair amount of pain in her shoulder and hand. She was given a short-arm brace and Medrol (Tr. 309). On October 1, 2012, she still had pain and tenderness in her neck and shoulder (Tr. 308). On October 29, 2012, her shoulder still bothered her to some degree. Her carpal tunnel was doing well. Dr. Holford switched her pain medication from Vicodin to Ultram due to constipation (Tr. 307). On February 11, 2013, the plaintiff reported that she still experienced "chronic pain and tenderness" and that she "has a hard time moving her shoulder." There are no objective findings in the treatment notes. Dr. Holford recommended she see William E. Durrett, M.D., for pain management (Tr. 306).
On February 26, 2013, Dr. Durrett treated the plaintiff for severe, chronic, worsening right neck and shoulder pain. She had cervical radicular symptoms and reflex sympathetic dystrophy ("RSD") type symptoms of the right arm with burning dysesthesias and paresthesias and severe sensitivity to touch. The plaintiff had been diagnosed with severe cervical radiculopathy as well as bulging disks at multiple levels and severe stenosis at several levels of the cervical spine. She also had anxiety and depression associated with her illness. Upon examination, the plaintiff had decreased range of motion, decreased pinprick sensation, and tenderness of the right C4-5, C5-6, and C6-7 facet joints. She had minimal rotation of her arm and shoulder and tenderness to light touch with burning dysesthesia in her arm, forearm, and wrist. Dr. Durrett diagnosed the plaintiff with severe right cervical radiculopathy C4 through C7 and rotator cuff injury, as well as possible early RSD. Dr. Durrett recommended a course of anti-inflammatory medications, Nucynta, Lidoderm patches, injective therapy, and possible nerve root blockade and/or radio frequency nerve ablation (Tr. 325-26). On March 15, 2013, the plaintiff returned with continued right neck pain, cervical radicular pain, and RSD symptoms down to the right hand. She had tenderness and decreased pinprick sensation. She received a right C4-C5, C5-C6, C6-C7 facet medial branch block (Tr. 324).
On April 22, 2013, the plaintiff reported excellent relief after her last injection, with a decrease in pain to a 5-6/10 severity. On examination, she had tenderness, decreased pinprick sensation, and continued RSD phenomenon down her right upper extremity. She was diagnosed with right cervical facet arthropathy with RSD, and she received another injection (Tr. 323). On May 3, 2013, Dr. Durrett completed a disability claim form, on which he assessed limitations arising from the plaintiff's right cervical facet arthropathy and RSD. Dr. Durrett wrote that the plaintiff had neck and shoulder pain with severe sensitivity due to RSD. She had minimal rotation of her arm and shoulder and could not carry over five pounds. Dr. Durrett indicated that any work activity should be limited to desk work and nothing physical (Tr. 400-01).
On May 21, 2013, the plaintiff had moderate tenderness of the right C4 through C7 facet joints. She received a radiofrequency ablation at each level (Tr. 332). On July 9, 2013, she was somewhat improved in terms of her neck and shoulder pain, but she still had burning pain down her right arm with RSD symptoms. She had tightness and tenderness of the right suprascapular area with muscle spasm and the right occipital area with headache. Her Nucynta dosage was increased and Lidoderm patches were prescribed (Tr. 331).
On September 7, 2013, Shaun A. Nguyen, M.D., performed an orthopedic consultative examination at the request of the state agency. The plaintiff reported suffering a workplace injury in July 2011 while working on a production line; subsequent imaging confirmed a torn right rotator cuff and bulging discs in the cervical spine. She reported seeking pain management, including nerve facet block injections, with the most recent injections in May 2013. She rated her pain as constant and 10/10 in severity, localized in the cervical spine and right shoulder, radiating to her right elbow. She denied weakness or stiffness. She denied other symptoms, including all neurologic and psychiatric symptoms. She reported being independent in daily activities, but required assistance with household chores. She reported being able to drive, walk for 15 minutes, stand for 15 minutes, and sit for 30 minutes. Physical examination was normal, with 5/5 strength in all extremities, normal reflexes, normal sensation, and no atrophy. In an accompanying chart with more detailed musculoskeletal findings, Dr. Nguyen found normal function in both hands, with no joint deformity, tenderness, stiffness, or loss of grip strength. Dr. Nguyen completed a range of motion chart, showing normal range of motion in most areas, but moderately impaired wrist flexion, hip flexion, and cervical spine flexion/extension/rotation. Dr. Nguyen found that she had cervicalgia with moderate tenderness, right shoulder pain with right radiculopathy, and lumbago. X-rays showed scoliosis and probable degenerative disc disease of the cervical spine (Tr. 334-43).
A September 9, 2013, x-ray of the plaintiff's cervical spine revealed mild to moderate cervicothoracic idiopathic scoliosis, with minimal narrowing and slight flattening at the C3-C4 junction. An x-ray of the plaintiff's lumbar spine revealed minimal scoliosis of the lumbar spine at L4-L5 and minimal convex scoliosis at the thoracolumbar junction, with loss of normal lordosis. The radiologist noted an impression of minimal scoliosis, but otherwise a normal image (Tr. 342-43).
On September 17, 2013, Rebecca Meriwether, M.D., a state agency physician, reviewed the physical evidence of record (including records from consultative examiner Dr. Nguyen, Aiken Regional Medical Center, a chiropractor, CMI, Aiken Neurosciences, and additional diagnostic imaging), and provided findings of fact related to the plaintiff's physical limitations. She assessed severe spine disorders and joint dysfunction and non-severe obesity. Dr. Meriwether provided a physical residual functional capacity ("RFC") assessment, in which she determined that the plaintiff was capable of work at the light exertional level. She assessed further postural limitations, including limited pushing/pulling with the right upper extremity; no climbing of ladders/ropes/scaffolds; occasional balancing, stooping, climbing of ramps and stairs, kneeling, and crouching; and no crawling. She further found that the plaintiff was limited in reaching to the front, laterally, and overhead with her right arm, and could perform limited gross manipulation with her right hand. She assessed a limitation to even moderate exposure to workplace hazards. Dr. Meriwether provided an extensive narrative explanation of her physical RFC assessment and wrote that "[alleged] severity of neck and [right upper extremity] pain and functional limitations are out of proportion to the objective [evidence] in the file" (Tr. 88-93)
The plaintiff was treated by Lucille Miller, CFNP, a practitioner at Low Country Healthcare, on November 18, 2013. She reported that she had lost her insurance and was having difficulty obtaining medications. She reported ongoing pain and stiffness in her neck, right shoulder, arm, and wrist. Ms. Miller's physical examination was normal and included an observation of a brace on the plaintiff's right wrist/forearm (Tr. 345-46).
On February 17, 2014, the plaintiff saw Ms. Miller. She was unable to return to pain management because she had no insurance. She had neck and right shoulder pain, and she wore a brace on her right wrist/forearm. She had an additional complaint of constipation. Ms. Miller prescribed Ultram (Tr. 385-86). On April 4, 2014, she still had right shoulder pain that radiated into her right arm, wrist, and hand. There was no change in physical examination, and the plaintiff had a normal gait, station, and posture. The plaintiff reported that she was preparing for a disability hearing in May 2014. Ms. Miller indicated that she would try to get the plaintiff approved for a continued Nucynta prescription through Low Country's indigent program ( (Tr. 389-90). The plaintiff returned on July 9, 2014, for pain in her neck and the entire right side of her body (Tr. 392).
On reconsideration in March 2014, state agency physician James Weston, M.D., opined the same as Dr. Meriwether. Dr. Weston had the benefit of the initial medical records that were before Dr. Meriwether, as well as additional evidence from Low Country (Tr. 98-101, 104-07).
On April 11, 2014, a urine test indicated that the plaintiff was not taking Ultram, which was a reported medication at that time (Tr. 364).
On May 31, 2014, the plaintiff saw Reuben B. Ridgeway, Ph.D., for a consultative psychological examination. Dr. Ridgeway noted that the plaintiff walked in a "slow, stiff manner and grimaced as she moved and sat in a chair." She switched seating during the interview to get comfortable. She described pain and an inability to afford medications. She reported needing assistance with bathing and dressing. Her pain problems prevented her from doing housework. She relied on her mother and her children to assist her. She attributed her depression and anhedonia to chronic pain and financial stress. With her depression, she became less interested in being around others. Her affect was depressive with tearful. She described limited daily activities, including watching television, reading the Bible, and talking to family and friends on the telephone. Dr. Ridgeway's abbreviated test of cognitive functioning was normal; his mental status examination revealed depressive/tearful affect, good communication, relevant thought content, no history of hallucinations, normal recent and remote memory, and good insight and judgment. The plaintiff achieved a score of 30/30 on a mini-mental status examination (normal range) She was diagnosed with moderate major depressive disorder and degenerative disc disease and chronic pain. Her Global Assessment of Functioning ("GAF") score was 42. Dr. Ridgeway opined that the plaintiff was capable of gainful employment, but noted that the extent that her medical issues interfered with her employment was beyond his expertise, and medical professionals should be consulted (Tr. 348-50).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 41 and 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On June 25, 2014, state agency psychologist Kevin King, Ph.D., reviewed the mental evidence of record at the reconsideration stage. Dr. King assessed severe affective and somatoform disorders. In his consideration of the mental paragraph "B" criteria, Dr. King assessed mild restriction of activities of daily living; mild difficulties maintaining concentration/persistence/pace; moderate difficulties maintaining social functioning; and no episodes of decompensation. In an accompanying mental RFC assessment, Dr. King assessed moderate limitations in the plaintiff's ability to interact with the general public and accept instructions and criticism from supervisors, and moderate limitations in her ability to travel in unfamiliar places and use public transportation. Dr. King did not assess limitations regarding the plaintiff's ability to understand, remember, or carry out instructions (Tr. 102-04, 108-09, 247).
On July 19, 2014, the plaintiff was seen at Low Country for severe pain in the right side of her body. She had decreased right hand grasp. Amitriptyline, Soma, and hydrocodone were prescribed (Tr. 366-67). On September 22, 2014, she returned with neck and back pain. She saw Alan Huellmantel, M.D., who requested that she complete paperwork for her Nucynta application. He started her on a course of Norvasc and lisinopril, but did not perform an examination (Tr. 368, 393).
On August 20, 2015, the plaintiff saw Sally Blake, a non-physician provider, at Low Country. Her carpal tunnel still hurt, her neck was stiff, and her lips tingled. She had positive Tine's, positive Fallowness, with right shoulder and arm pain in the C3-4, C6-7 distribution. She had guarded movements with walking and with her right arm. Ms. Blake noted pain in the plaintiff's right shoulder with radiculopathy and pain in the cervical spine. She noted depressed/tearful affect during her mental status examination (Tr. 394-95). On August 31, 2015, the plaintiff followed up with Ms. Blake to discuss lab results. Her hand still hurt. She had right thenar edema with guarded movements. Ms. Blake noted normal mood and affect and found swelling of the plaintiff's right wrist upon examination. Her physical examination was otherwise normal (Tr. 396-97).
On February 12, 2016, the plaintiff visited the Aiken Regional Medical Center emergency department with a complaint of severe headaches, radiating to both sides of her neck. She denied other symptoms, including musculoskeletal symptoms. A treating provider's physical examination was normal, with normal strength, normal range of motion, no tenderness no swelling, and normal sensation. A summary mental status examination was normal. The plaintiff was prescribed Norco to treat her headaches and was discharged soon after admission (Tr. 382-83).
At the administrative hearing on July 18, 2016, the plaintiff testified that she was single and lived with her 25-year-old daughter. She was five feet eight inches tall and weighed 200 pounds. She completed the twelfth grade. She received long-term disability and reported that she previously received short term disability after she worked as an assembler and a manufacturing technician. She worked for several temporary agencies (Tr. 45-50).
The plaintiff stated that she had severe pain in the back of her neck, headaches, and a shooting pain from her shoulder down into her fingers on the right side. She had severe pain all day long. Walking, getting ready, and getting something to eat aggravated her pain. She took tramadol and indomethacin for pain, but they did not help. Side effects included constipation, drowsiness, dizziness, and night sweats. She could not sleep at night. Her pain went down to her fingertips, and she had numbness in her arm, hand, and fingers. Her hand was swollen also. She held her arm close to her stomach, which gave her a little comfort. She had undergone carpal tunnel surgery. She was going to have neck surgery, but her insurance ran out. The plaintiff received worker's compensation payments and a settlement, but she could not remember when she received the settlement (Tr. 50-54).
The plaintiff also had headaches three or four times a week. Her head throbbed from the back of her head and up. Sometimes she had blurry vision. Her headaches made it hard to function. She tried to lie down to ease the pain, but she also took pain pills. The medicine did not really help. The headaches lasted an hour or two. She took medicine for her blood pressure, but her blood pressure was high. Side effects from blood pressure medication included dry mouth, weakness, and loss of appetite. She used a Lidocaine patch and Bio Freeze for her neck pain. She also experienced depression and took amitriptyline, which was also supposed to help her sleep. Her depression made her feel like her life was over. She had crying spells and felt guilty. She also took a heart medication every day (Tr. 54-57).
The plaintiff estimated that she could take ten or 15 steps before she became dizzy or she had to regain her balance. She needed to rest five or ten minutes before walking again. She did not use a cane. She had pain in her head and her neck while walking. She said she could sit, but she moved from side to side to try to find a comfortable place. The plaintiff could lift a piece of paper with her right hand, but she could not lift a gallon of milk. She was right-handed. She could sign her name, but it was very painful. She could not reach over her head on the right. She could not pick up or hold things like an apple or a tennis ball. She could not turn a doorknob. She could do things like pick up a penny or hold a utensil, but it was painful. She could reach down and touch her knees, but it would be hard. She could not touch her toes (Tr. 57-59).
The plaintiff had problems with her short-term memory. She forgot things like doctor's appointments and why she left one room to go to another. She forgot to pay bills. She could watch TV, but she watched about 50 percent of the time. She tried to read the Bible for about 30 to 45 minutes. She could understand instructions on a microwave meal. It was hard for her to interact with other people, even if she knew them. She felt like no one understood her, and she tended to be on her own more. She went to church once or twice a month. Sometimes she stayed for the whole service, or around two hours. She did not go to ball games or movies. The plaintiff needed help putting her shirt and bra on or fastening her pants or shoes. She had a driver's license and drove three or four times a month for 45 minutes to an hour. She steered with one hand (Tr. 60-64).
The plaintiff testified that her mother cooked, and she ate out most of the time. Her daughter did the grocery shopping. Her daughter and her mom did the laundry and the dishes. She microwaved food or made cereal. She said she was up half of the night. When she woke up she went to the bathroom and ate something. She took her medicine, and she might watch some television. She laid down and went back to sleep. After a nap, she got dressed, but sometimes she stayed in her pajamas. During most of the day, she watched television and slept. The day before the hearing, the plaintiff went to church for two hours, and then she went home in pain and went to bed. She did not think she could work an eight hour day because she would be in too much pain. Reaching in any direction was difficult. She leaned and used her whole body to reach instead of just using her arm (Tr. 64-68).
The vocational expert classified the plaintiff's past relevant work as that of machine assembler, testing operator, machine operator, and quality control tester (Tr. 70-76). The ALJ proposed the following hypothetical:
Assuming a hypothetical individual the claimant's age, education, and with the past jobs you describe . . . limited to lifting and carrying 20 pounds occasionally and 10 pounds frequently; limited to standing and walking and sitting up to six hours in an eight hour workday; limited to occasional pushing
and pulling with the right dominant upper extremity; limited to occasional climbing ramps and stairs, balancing, stooping, kneeling, and crouching. No climbing of ladders, ropes, and scaffolds or crawling. Limited to frequent reaching in all directions on the dominant right upper extremity, limited to frequent handling on the dominant right hand. The individual must avoid hazards such as working at unprotected heights and around moving mechanical parts, limited to performing simple and routine tasks. Limited to work that requires concentration, persistence, and pace for two hour periods during the day, and limited to work that only has occasional interaction with the public.(Tr. 76-77). The vocational expert testified that the individual could perform the plaintiff's past relevant work as testing machine operator, light, specific vocational preparation ("SVP") of 2, but the other jobs would be ruled out. Other jobs the individual could perform included office helper jobs, Dictionary of Occupational Titles ("DOT") No. 239.567-010, light, SVP of 2, unskilled, with 165,000 jobs nationally; packer operator, DOT No. 920.685-082, light, SVP of 2, with 103,000 jobs nationally; and inspector and hand packager, DOT No. 559.687-074, light, SVP of 2, with 114,000 jobs nationally (Tr. 76-78).
The ALJ proposed a second hypothetical:
[T]he individual is limited to lifting 20 pounds occasionally and 10 pounds frequently with the nondominant left hand only. Limited to occasional reaching in all directions with the dominant right upper extremity and limited to occasional handling and fingering on the dominant right hand. Everything else was the same [as the first hypothetical].(Tr. 78). The vocational expert testified that the individual could not perform the past work as the testing operator job. The individual could perform other work that would require a job accommodation, which the DOT would not address (Tr. 78).
The ALJ proposed a third hypothetical:
[The] individual is limited to lifting five pounds occasionally and less than five pounds frequently, limited to standing and walking up to two hours in an eight hour day, limited to sitting up to six hours in an eight hour day, limited to occasional pushing and pulling with the right dominant upper extremity, limited to
occasional climbing of ramps and stairs, balancing, stooping, kneeling, and crouching. Limited to no climbing ladders, ropes, or scaffolds, or crawling. Limited to frequent reaching all directions on the dominant right upper extremity, limited to frequent handling on the dominant right hand. The individual must avoid hazards such as working at unprotected heights and around moving mechanical parts. Individual is limited to performing simple and routine tasks, and limited to work that requires concentration, persistence, and pace for two hour periods during the day and limited to work with occasional interaction with the public(Tr. 79). The vocational expert testified that the individual could not perform the plaintiff's past relevant work, but could perform work as order clerk, DOT No. 209.567-014, sedentary, SVP of 2, which is unskilled, with 80,000 jobs nationally; table worker, DOT No. 739.687-182, sedentary, SVP of 2, with 100,000 jobs nationally; and inspector jobs, DOT No. 726.684-050, sedentary, SVP of 2, with 90,000 jobs nationally (Tr. 79-80).
The ALJ asked about the same individual, but with a limitation of lifting and carrying with the non-dominant left hand only and occasional reaching in all directions with the dominant right upper extremity, and limited to occasional handling and fingering on the dominant right hand (Tr. 80). The vocational expert stated there would only be work under an accommodation situation (Tr. 80). The vocational expert testified that an individual who was off task 15 percent of the day would not be able to work. The vocational expert based his response about being off task and about dominant versus non-dominant hand limitations was based on his experience, education, and training (Tr. 80).
The attorney asked the vocational expert if there was a fairly significant vocational impact between frequent reaching and handling and occasional reaching and handling. The vocational expert testified that there was (Tr. 81).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to properly consider her subjective complaints, (2) failing to properly assess the medical opinion of treating physician Dr. Durrett, and (3) failing to properly explain the RFC assessment (doc. 16 at 16-31).
Subjective Complaints
The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, "Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or severe that it prevent[ed] him from working a full eight-hour day." 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that "'[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'" Id. at 564 (quoting SSR 90-1p, 1990 WL 300812). The court further acknowledged:
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It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.
While objective evidence is not mandatory at the second step of the test, "[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers."Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) ("We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.").
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [he] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
Social Security Ruling16-3p rescinded and superseded SSR 96-7p and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Because this application was adjudicated after the date SSR 16-3p became applicable, the court has analyzed the plaintiff's allegations under that ruling. Id. at *13 n.27. The court observes that SSR 16-3p discontinues use of the term "credibility," but "'the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record.'" Best v. Berryhill, C.A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (alteration in original) (quoting Sullivan v. Colvin, C.A. No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)). See also Keaton v. Colvin, C.A. No. 3:15-cv-588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term 'credibility' but does not alter the substantive analysis."). --------
(1) the individual's daily activities;20 C.F.R. §§ 404.1529(c), 416.929(c).
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Here, the ALJ found that "the claimant's medically determinable impairments could reasonably be expected to cause 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" (Tr. 31). The ALJ gave the following reasons for the credibility finding: (1) the mental evidence of record, including the consulting examination of Dr. Ridgeway and the lack of any treatment with a mental provider, did not support greater limitations; (2) there was no invasive treatment of the plaintiff's physical impairments beyond her carpal tunnel release surgery, which was noted to provide relief; (3) the plaintiff did not treat with any specialists after mid-2013 (to include pain management); (4) Dr. Nguyen's findings during a consultative examination did not support greater limitations; and (5) the RFC did not conflict with the findings of the state agency physicians (Tr. 31-32).
The plaintiff concedes that the ALJ followed the two-step process for assessing a claimant's credibility, but alleges two errors in this portion of the ALJ's decision: (1) the ALJ failed to adequately address the plaintiff's inability to afford additional medical treatment; and (2) the ALJ failed to explain how she found the plaintiff's activities of daily living were an "impressive spectrum of activities of daily living" that "require notable degrees of concentration, persistence, and pace" (doc. 16 at at 30-31). Because the undersigned finds that the ALJ erred in citing the plaintiff's lack of medical treatment with specialists without also considering her reasons for failing to obtain such treatment, remand for further consideration is recommended.
The ALJ noted several times in the decision that the plaintiff had not treated with a specialist since she met with Dr. Durrett, a pain management specialist, in July 2013 (Tr. 30-32). As argued by the plaintiff, however, the record reveals evidence documenting her lack of insurance and inability to pay for treatment with a specialist. Specifically, in treatment notes from Barnwell Family Medicine in November 2013, it was noted that the plaintiff stated she could not follow up with CMI until she paid a bill for $2,000, and she was attempting to "space out" her medications due to cost (Tr. 345). Also, Ms. Miller noted that the plaintiff saw Dr. Durrett until her insurance ended (Tr. 385). Further, when the plaintiff sought treatment at Blackville Medical Center, she told providers that she had no insurance and that she had to stop seeing Dr. Durrett due to inability to make payments (Tr. 394, 396). At the administrative hearing, the plaintiff testified that she was unable to have neck surgery due to lack of insurance, and she was unable to see her orthopedic doctor because her insurance ran out, and she still owed them money (Tr. 52, 68-69).
An individual's medical treatment history is one of the factors that an ALJ may consider in assessing his credibility. See 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p, 1996 WL 374186, at *3. Social Security Ruling 16-3p states as follows:
[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints. When we consider the individual's treatment history, we may consider (but are not limited to) one or more of the following:SSR 16-3p, 2017 WL 5180304, at * 9-10. Further, the Court of Appeals for the Fourth Circuit has stated that a "claimant may not be penalized for failing to seek treatment he cannot afford; '[i]t flies in the face of the patent purpose of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'" Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)).
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- An individual may not be able to afford treatment and may not have access to free or low-cost medical services.
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[W]e will consider and address reasons for not pursuing treatment that are pertinent to an individual's case. We will review the case record to determine whether there are explanations for inconsistencies in the individual's statements about symptoms and their effects, and whether the evidence of record supports any of the individual's statements at the time he or she made them. We will explain how we considered the individual's reasons in our evaluation of the individual's symptoms.
The ALJ did not address the plaintiff's alleged inability to afford treatment as a reason for her lack of treatment by specialists after mid-2013. The Commissioner argues that "the overall record is somewhat mixed" as to whether lack of insurance was the true reason for the plaintiff's failure to seek additional treatment and cites evidence supporting this argument (doc. 18 at 19-20). However, this is post-hoc rationalization not included in the decision as the ALJ apparently did not consider this issue at all. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ."). Based upon the foregoing, because the plaintiff presented significant evidence to suggest she was unable to afford additional medical treatment by specialists, the ALJ erred in considering her failure to obtain treatment by specialists after mid-2013 as a factor that reduced the credibility of her allegations without also considering her reasons for not obtaining additional treatment. See Hackett v. Berryhill, C.A. No. 9:17-1252-CMC-BM, 2018 WL 1064252, at *7 (D.S.C. Feb. 22, 2018) ("Since the ALJ used Plaintiff's non-compliance to lessen her credibility, the decision should be reversed and remanded for the ALJ to make factual findings regarding Plaintiff's financial situation and its impact on her ability to comply with recommended medical treatment."), R&R adopted by 2018 WL 1071286 (D.S.C. Feb. 26, 2018); Roscoe v. Berryhill, C.A. No. 1:17-81-BHH-SVH, 2017 WL 4173750, at *10 (D.S.C. Aug. 31, 2017) (recommending remand because ALJ erred in considering claimant's failure to obtain medical treatment in assessing his credibility without having also considered whether the gap in treatment resulted from his financial hardship), R&R adopted by 2017 WL 4156369 (D.S.C. Sept. 19, 2017).
The Commissioner argues that even if the ALJ erred in this regard, the error was harmless because "the ALJ provided a thorough discussion of the medical evidence and based her credibility determination in large part on the relatively benign diagnostic imaging and physical examination" (doc. 18 at 20) (citations omitted). It is true that the ALJ provided several reasons for the credibility finding, as set out above (Tr. 31-32). However, within the RFC assessment and the discussion of the plaintiff's subjective complaints, the ALJ noted several times that the plaintiff did not see any specialist after July 2013 (see Tr. 30, 31, 32). As noted in Roscoe, "This court has considered the Commissioner's argument in other cases, but has generally concluded that the ALJ's failure to consider the plaintiff's reasons for not obtaining additional treatment infected the entire credibility assessment." Roscoe, 2017 WL 4174750, at *11 (citations omitted). "Similarly, in the instant case, it is impossible for the court to determine to what extent the ALJ relied on [the plaintiff's failure to see any specialist after mid-2013] in assessing the credibility of [her] subjective complaints." Id. Accordingly, the undersigned recommends that the court remand this case for further administrative proceedings so that the ALJ may consider the plaintiff's financial situation and its impact on her ability to obtain medical treatment by specialists.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-64 n.3 (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). Accordingly, as part of the overall reconsideration of this claim upon remand, the ALJ should also consider the following additional allegations of error raised by the plaintiff: (1) the ALJ failed to explain how she found the plaintiff's activities of daily living were an "impressive spectrum of activities of daily living" that "require notable degrees of concentration, persistence, and pace"; (2) the ALJ failed to properly assess the medical opinion of treating physician Dr. Durrett; and (3) the ALJ failed to properly explain the RFC assessment, including how she accounted for the plaintiff's RSD and how the RFC's limitation to simple, routine, repetitive tasks accounted for the plaintiff's moderate difficulties in concentration, persistence, and pace (doc. 16 at 16-31).
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge October 12, 2018
Greenville, South Carolina