Opinion
Civil Action No. 6:17-2353-RMG-KFM
08-09-2018
Fort Taylor, Jr., 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 his 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 applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on February 19, 2014. In both applications, the plaintiff alleged that he became unable to work on February 14, 2014. Both applications were denied initially and on reconsideration by the Social Security Administration. On June 25, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Arthur F. Schmitt, an impartial vocational expert, appeared on September 10, 2015, considered the case de novo, and on November 18, 2015, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 24-32). 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 June 28, 2017 (Tr. 1-6). 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 September 30, 2017.
(2) The claimant has not engaged in substantial gainful activity since February 14, 2014, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: emphysema status post bilateral pneumothorax, tobacco dependence, and lumbar osteoarthritis with mild spondylosis (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, the undersigned finds 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). Specifically, the claimant is able to lift and carry up to 20 pounds occasionally and ten pounds frequently and stand, walk, and sit for six hours in an eight-hour day except that the claimant can occasionally climb ladders, ropes, or scaffolds, and must avoid concentrated exposure to temperature extremes, wetness, humidity, fumes, dust, chemicals, noxious odors, poor ventilation, and hazards.
(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 August 27, 1962, and was 51 years old, which is defined as an individual closely approaching
advanced age, on the alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has a limited 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 February 14, 2014, through the date of this decision (20 C.F.R. §§ 404.1520(g), 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 51 years old on his alleged disability onset date (February 14, 2014) and 53 years old at the time of the ALJ's decision (November 18, 2015). He completed his education through the eleventh grade. He had past relevant work as a journeyman/lineman (Tr. 30, 224).
On January 29, 2014, the plaintiff was seen at Trident Health Systems for worsening back pain. He also had large emphysematous blebs in the upper lungs (Tr. 265-74). On February 14, 2014, he went to the emergency room with chest pain. He was diagnosed with a large left-sided pneumothorax. A chest tube was placed with re-expansion of the left lung. It was noted that he had no detectable residual pneumothorax. He denied back pain, and his back examination was normal (Tr. 280-92).
On February 17, 2014, the plaintiff began treatment for his pneumothorax at Palmetto CV Thoracic Association (Tr. 320). On February 20, 2014, he reported that his shortness of breath was about the same as it was when he left the hospital (Tr. 322). On February 25, 2014, Korey Plewinski, M.D., recommended a video-assisted thorascopic pleurodesis as the plaintiff's chest x-ray and shortness of breath had not changed (Tr. 323).
On February 26, 2014, the plaintiff was admitted to Trident Medical Center for a left-sided pneumothorax, which failed to heal with a thoracostomy tube. He underwent a left thoracoscopy wedge resection of the left upper lobe. Multiple complex blebs were present in the upper lobe. He was discharged on March 4, 2014, in stable condition (Tr. 295-99, 308, 325).
On March 13, 2014, the plaintiff reported significant pain after his pleurodesis surgery. A chest x-ray showed lobulated layering on the left lower lobe, which might represent layering effusion or developing scar status post pleurodesis (Tr. 324-29).
On May 5, 2014, Cleve Hutson, M.D., a state agency physician, reviewed the plaintiff's medical records and concluded that he could perform medium work. Dr. Hutson opined that the plaintiff could occasionally lift and/or carry 50 pounds and frequently lift and/or carry 25 pounds. He could sit, stand, and walk six hours in an eight-hour workday. Dr. Hutson opined that the plaintiff could frequently climb ramps and stairs and occasionally climb ladders, ropes, and scaffolds. He should avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, and poor ventilation. He should avoid even moderate exposure to hazards. Dr. Hutson wrote that the plaintiff's allegations of shortness of breath and chest pain were credible but were expected to improve with treatment (Tr. 64-67). On June 2, 2014, Hurley W. Knott, M.D., opined the same (Tr. 83-86).
On July 31, 2014, the plaintiff was seen at Sumpter Free Health Clinic and reported that his left lung hurt when he coughed or laughed. He could feel it "fluttering" randomly. He had diabetes and hypertension and was obese (Tr. 397). On August 26, 2014, he reported low back pain with radiculopathy down the left leg. Soma and hydrocodone were prescribed (Tr. 398). On September 4, 2014, the plaintiff had pain in his back and right leg. He said his pain medicine did not help. He had a tender lumbosacral area and a positive straight leg raise on the right. His right knee jerk was slightly less active than the left, and his ankle jerks were absent (Tr. 399).
On September 18, 2014, the plaintiff returned to the Sumpter Free Health Clinic requesting a refill on hydrocodone. He was told that they would not refill the prescription at that time, and he should use Tramadol for pain (Tr. 400).
On October 9, 2014, a chest x-ray showed the plaintiff had lateral pleural scarring. He also had right hilar prominence due to vascular crowding or adenopathy. A lumbar MRI showed diffuse spondylosis, with L4-L5 moderate bilateral exit crowding of L4 but no severe stenosis or frank impingement (Tr. 404-05).
On October 16, 2014, the plaintiff went to the Sumpter Free Clinic with severe back pain that radiated into his right leg. He had pain with flexion of the left spine and a positive straight leg raise test on the right. The plaintiff was diagnosed with degenerative disc disease of his lumbar spine with sciatica and obesity. He was told that no surgery would be needed, but injections and physical therapy would help. On November 25, 2014, an epidural injection was planned (Tr. 401-02).
On December 4, 2014, the plaintiff was admitted to the hospital again with a complete collapse of the right lung, which was resolved with chest tube placement. He underwent a right video-assisted thoracoscopy with talc pleurodesis and was discharged on December 12, 2014 (Tr. 361, 379-80).
On January 12, 2015, the plaintiff began treatment for emphysema, hypertension, diabetes, and spinal osteoarthritis with Eric M. Matheson, M.D. His treatment records reflect that his lungs were "surprisingly clear," and he was doing well post-op. On examination, he weighed 283 pounds and was 72 inches tall with a body mass index ("BMI") of 38.46. He had normal respiratory rate and rhythm. He denied shortness of breath and wheezing. He continued to complain of back pain. He reported that he had a referral to receive a spinal cord steroid injection, but he had not been able to get it yet. He said his lower back pain was more manageable with hydrocodone and acetaminophen. The plaintiff was diagnosed with lumbar and sacral osteoarthritis and was told to keep the scheduled followup steroidal injections (Tr. 352-53). He returned on February 2 and March 11, 2015, for a followup of his back pain, hypertension, diabetes, chronic obstructive pulmonary disease ("COPD"), and emphysema. He reported moderate back pain radiating to his legs. On examination, he had normal gait, balance, cranial nerves, 5/5 motor strength, and sensation. The plaintiff was diagnosed with radiculopathy, and Neurontin was prescribed. He was also referred to physical therapy. His hypertension was uncontrolled (Tr. 348-50).
On February 16, 2015, the plaintiff underwent spirometry testing, and his effort was described as poor, but his pattern was noted to be normal. He had forced expiratory volume in one second/forced vital capacity ("FEV1/FVC") of 66% (Tr. 354).
On March 11, 2015, the plaintiff reported he was smoking one pack of cigarettes per week. He denied shortness of breath, coughing, and wheezing. He did not fill his prescription for Wellbutrin, which could have aided in smoking cessation. On examination, he had normal respiratory rate and rhythm. His emphysema was noted to be stable, and he was urged to quit smoking (Tr. 348-49).
On April 8, 2015, he reported chest pain and dyspnea on exertion. The pain began after he had mowed the grass for ten minutes. On examination, he weighed 273 pounds with a BMI of 37.13. He had normal chest and cardiac examinations. A stress test was ordered. The plaintiff reported that his radiculopathy had improved with Neurontin. On examination, he had normal gait, balance, cranial nerves, 5/5 motor strength, and sensation. It was suggested that he add Cymbalta due to complaints of sedation with Neurontin. It was noted that the plaintiff had received mild relief with injections in the past. He was referred to an orthopedist "as previous improvement with injection" (Tr. 345-46).
On May 4, 2015, the plaintiff was seen for chest pain and dyspnea. His back pain radiated down his legs. Neurontin at 600mg was causing some sedation, but he reported his radiculopathy had improved with it. On examination, the plaintiff had normal gait, balance, cranial nerves, 5/5 motor strength, and sensation. With regard to his chest pain, he was told to avoid exacerbating activities. It was noted that he had not had the stress test, and his chest and cardiac examinations were normal. He was encouraged to have the stress test as ordered. He continued to smoke at least a third of a pack of cigarettes a day (Tr. 343-44).
On June 17, 2015, his back pain was unstable, and he was referred to an orthopedic doctor and to physical therapy. His chest pain was unchanged. He had not had the stress test that was prescribed earlier in the year. He expressed interest in medication to assist with smoking cessation. He reported that he only smoked two cigarettes a day. On examination, the plaintiff weighed 261 pounds with a BMI of 35.48. He had normal chest and cardiac examinations. He had normal gait, balance, 5/5 motor strength, and sensation (Tr. 340-41).
At the administrative hearing on September 10, 2015, the plaintiff testified that he worked as journeyman lineman/ lead lineman for 30 years, and he last worked in September 2014. The ALJ noted that his alleged onset date was February 2014, and the plaintiff stated that he had not remembered the date clearly, but his lung collapsed in February 2014, and he had not worked since then. He also quit working because of his back. When his lung collapsed, he thought he was having symptoms from a flu shot. The doctors tried to repair the lung, but he said he was on a lung transplant list (Tr. 41-47).
The ALJ stated that a spirometry breathing test in February showed his lungs were working okay. The plaintiff said he had received those results, but he still felt short of breath. He could not shop at the grocery store because of his shortness of breath and his back pain. He smoked two cigarettes a day. He used to smoke a full pack a day. He testified that he was prescribed Neurontin for back pain, and he had no problem with side effects from that medication. The plaintiff testified that he used a cane. One day he went outside and he fell. He called his doctor, who said the plaintiff might want to consider getting a cane. He was going to go to therapy, but his spasms were bad, and he was prescribed medications instead. The medications soothed his pain, but none of it really helped. He was scheduled to see another doctor to get a decision about surgery. He had received injections two to three years before, but they did not help at all. He had received one injection since October 2014, when the plaintiff was told by his doctor that no surgery was needed and injections or physical therapy would help. He put heat on his back, but it did not really do anything for him. He took gabapentin (Neurontin) for back pain (Tr. 47-51; see Tr. 401).
The plaintiff testified that he did not do much to help around the house. It was hard for him to even take a shower, and he had to have his wife help him get in and out. He used to mop the floors, but now he was out of breath and his back hurt. He could hardly stand up long enough to wash dishes. He used to help with the cooking, but now he heated up food in the microwave. He did not help with the grocery shopping. When he walked about a block, he had to stop a couple of times to get his breath back. He stood for about five or ten minutes at the most. Showering hurt, and he sat down in the shower because his back hurt. He tried to hold a baby that weighed nine or ten pounds, but he gave him back to his mother because he felt pressure in his back. Walking long distances made his pain worse (Tr. 52-55).
The vocational expert classified the plaintiff's past work as that of electrician helper, specific vocational preparation ("SVP") of 3, semi-skilled, Dictionary of Occupational Titles ("DOT") #829.687-022; and journeyman lineman, or laborer, SVP of 3, semi-skilled, heavy, DOT #869.664-014 (Tr. 55). The ALJ asked the vocational expert to consider a person of the plaintiff's age, education, and past work who was limited to light work and "only occasionally climbs ladders, ropes, or scaffolds; would need to avoid concentrated exposure to temperature extremes, wetness and humidity, fumes and dust, chemicals, noxious odors and poor ventilation; would also need to avoid workplace hazards" (Tr. 56). The vocational expert stated that the hypothetical individual could not perform the plaintiff's past work, but he could perform work as storage facility clerk, SVP of 2, unskilled, light, DOT #295.367-026, with 416,000 jobs nationally; ticket taker, SVP of 2, unskilled, light, DOT #344.667-010, with 104,000 jobs nationally; and coupon redemption clerk, SVP of 2, unskilled, light, DOT #290.477-010, with 14,700 jobs nationally (Tr. 56). The vocational expert stated that his testimony was consistent with the DOT, with the exception of the job description of journeyman, which he classified as laborer. The vocational expert testified that the hypothetical individual could perform the same three jobs if he required a cane for ambulating. He further testified that a need for a cane at all times would eliminate all three jobs (Tr. 57).
ANALYSIS
The plaintiff argues that the ALJ erred in failing to (1) properly evaluate his obesity pursuant to Social Security Ruling 02-1p; (2) properly consider his lumbar spine osteoarthritis and the sedating effects of his medication; (3) properly assess the medical source opinion evidence; and (4) properly evaluate his subjective complaints (doc. 17 at 10-22).
Obesity
The plaintiff first argues that the ALJ erred in failing to consider the effects of his obesity in the residual functional capacity ("RFC") assessment (doc. 17 at 11-12). The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and she does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 416.945(a)(3).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing
RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
Social Security Ruling 02-1p recognizes that obesity can cause limitations of function in sitting, standing, walking, lifting, carrying, pushing, pulling, climbing, balancing, stooping, crouching, manipulating, as well as the ability to tolerate extreme heat, humidity, or hazards. SSR 02-1p, 2002 WL 34686281, at *6. The Ruling states that "individuals with obesity may have problems with the ability to sustain a function over time" and that "[i]n cases involving obesity, fatigue may affect the individual's physical and mental ability to sustain work activity." Id. The Ruling also states:
The combined effects of obesity with other impairments may be greater than might be expected without obesity. For example, someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from the arthritis alone.Id. Further, SSR 02-1P states, "As with any other impairment, we will explain how we reached our conclusions on whether obesity caused any physical or mental limitations." Id. at *7.
The plaintiff notes that his medical records show that he was diagnosed as obese in July and October 2014 and that he is 6 feet tall and weighs between 275 and 296 pounds (doc. 17 at 12; see Tr. 397, 401). However, as argued by the Commissioner, nowhere in the administrative process has the plaintiff alleged that his obesity placed any limitations on his functional capacity. He did not allege obesity as a condition that limited his ability to work in his disability reports (Tr. 223), and neither he nor his attorney representative raised the issue of his obesity prior to the hearing or at the hearing (Tr. 37-58, 262-64). Moreover, even now, while the plaintiff argues that the ALJ erred in failing to discuss his obesity in her decision, the plaintiff points to no evidence suggesting that his obesity has caused any work-related functional limitations and certainly none that reduces his RFC to anything less than a reduced range of light work, as found by the ALJ. "The burden of proof and production rests on the plaintiff to show limitations." Thomas v. Colvin, C.A. No. 1:13-cv-1294-RMG, 2014 WL 2611720, at *13 (D.S.C. June 11, 2014) (citations omitted). As SSR 02-1p states:
[W]e [the Commissioner] will not make assumptions about the severity or functional effects of obesity combined with other impairments. Obesity in combination with another impairment may or may not increase the severity or functional limitations of the other impairment. We will evaluate each case based on the information in the case record.SSR 02-1p, 2002 WL 34686281, at *6.
The undersigned recommends that the district court find that, based on the information in the case record, the ALJ did not err in the RFC assessment by failing to consider the effects of the plaintiff's obesity. See Thomas, 2014 WL 2611720, at *13 (finding no error in ALJ's failure to discuss obesity in RFC assessment where the plaintiff provided no evidence that obesity placed any limitations on functional capacity). Moreover, even if the ALJ did err in this regard, any error was harmless because there is no evidence that the RFC assessment would have been any different if the ALJ had provided such an explanation. See Shaw v. Berryhill, C.A. No. 5:16-cv-1499-MGL, 2017 WL 2115579, at *3 (D.S.C. May 16, 2017) (finding any error in failing to discuss obesity was harmless as the ALJ discussed substantial evidence supporting the RFC assessment, and there was no evidence the plaintiff's obesity, either alone or together with other impairments, rendered his functioning more limited than the RFC indicated); Smith v. Astrue, C.A. No. 8:10-cv-2624-CMC-JDA, 2012 WL 786944 (D.S.C. Jan.18, 2012) (finding that any error by ALJ in failing to discuss obesity was harmless as there was no evidence in the record that obesity placed any additional functional limitations on the plaintiff), R&R adopted by 2012 WL 786583 (D.S.C. Mar. 9, 2012). See also Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding).
Lumbar Osteoarthritis and Medication
The plaintiff next argues that the ALJ erred in the RFC assessment by failing to properly consider his lumbar spine osteoarthritis (doc. 17 at 12-15). The ALJ found that the plaintiff's lumbar osteoarthritis with mild spondylosis was a severe impairment at step two (Tr. 26-27). The ALJ then discussed the plaintiff's "relatively benign physical examinations," which largely showed normal musculoskeletal examinations despite complaints of back pain (Tr. 29-30; see Tr. 341, 344, 346, 349). She noted that the plaintiff had been referred to an orthopedist and for physical therapy and steroidal injections, which he did not pursue (Tr. 29-30; see Tr. 49-50, 401). She further noted that in April 2015, the plaintiff stated that his radiculopathy had improved with Neurontin, and it was suggested that he add Cymbalta, due to his complaints of sedation (Tr. 29-30). The ALJ noted that examination notes in May and June 2015 also reflected that the plaintiff's pain had improved with Neurontin (Tr. 30; see Tr. 340-41, 343-44).
The plaintiff further argues that "it is not clear why the ALJ did not account for sedation in the RFC" based upon the ALJ's acknowledgment in the decision that the plaintiff complained of sedation with Neurontin (doc. 17 at 14) (citing Tr. 29-30). However, the ALJ specifically noted in the decision that the plaintiff testified at the hearing that he had no problem with side effects from Neurontin (gabapentin) (Tr. 28; see Tr. 51). "'In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].'" Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.1996)).
The plaintiff also argues that "'poverty excuses noncompliance . . . or the failure to seek treatment,'" and thus the ALJ erred in failing to consider that he does not have insurance to cover injections or physical therapy and that the record does not show that Welvista ever approved Cymbalta (doc. 17 at 14) (quoting Baker v. Astrue, 1:11-cv-35-CSC, 2012 WL 353738, at *4 (M.D. Ala. Feb. 2, 2012)). The Fourth Circuit has found 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)). While an
individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure[,] . . . the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide . . . .SSR 96-7p, 1996 WL 374186, at *7.
Here, however, the plaintiff did not testify that he was unable to afford the prescribed treatment. Rather, at the hearing, the plaintiff testified that he did not have the recommended injections because the injections he had in the past did not help, and he did not have physical therapy because at the time the doctor was going to schedule it, his back pain "was flaring up so bad, they put that off" (Tr. 50). At no point during the hearing did the plaintiff testify that he was unable to receive treatment or medication due to the inability to afford it. The court's role is to evaluate whether the ALJ's decision is supported by substantial evidence. The ALJ based her decision on the medical evidence of record, which did not support the plaintiff's allegations of disabling limitations. Accordingly, the ALJ did not err in this regard. See Miller v. Colvin, C.A. 4:13-cv-914-DCN, 2014 WL 2112696, at *6 (D.S.C. May 20, 2014) (finding ALJ did not err in failing to consider plaintiff's inability to afford treatment where the plaintiff did not testify that she was unable to afford treatment).
Further, in the RFC assessment, the ALJ considered the medical source opinions of record, as required by SSR 96-8p. See 1996 WL 374184, at *7. First, the ALJ noted that none of the plaintiff's treating physicians had offered any medical opinion with regard to his functional limitations (Tr. 30). The ALJ further stated that she had given "some weight" to the assessments of the state agency medical consultants' opinions, who opined the plaintiff could perform a range of medium work (Tr. 30). However, the ALJ stated that she had considered the plaintiff's lumbar degenerative disc disease in further reducing his RFC to a range of light work and limiting his climbing to occasional (Tr. 30; see Tr. 64-67, 83-86).
Based upon the foregoing, the ALJ's RFC assessment and consideration of the plaintiff's lumbar spine osteoarthritis and the sedating effects of his medication are based upon substantial evidence and without legal error.
Medical Opinion Evidence
The plaintiff further argues that the ALJ erred in her consideration of the medical opinion evidence (doc. 17 at 16-18). The regulations require that all medical opinions in a case be considered. 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. §§ 404.1527(c)(2), 416.927(c)(2).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. §§ 404.1527, 416.927. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. §§ 404.1520c, 416.920c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
As noted above, no treating physician provided a medical opinion in this case, and the ALJ gave "some weight" to the opinions of the state agency medical consultants, Drs. Hutson and Knott (Tr. 30; see Tr. 64-67, 83-86). The plaintiff argues that the ALJ erred in relying on the state agency medical consultants' opinions as to his limitations from emphysema and lung problems because he did not improve with treatment as these physicians had predicted (doc. 17 at 16-17; see Tr. 67, 86). Both state agency medical consultants stated with regard to these issues:
It is reasonable that [the plaintiff] w/ continue to heal w/ proscribed treatment. Given benefit of doubt w/ regard to reasonable restrictions in RFC as outlined at end of projected period. . . . Allegations of problems [shortness of breath] chest pain are credible at this time, but are expected to improve w/ [treatment] by the end of the projected period to allow for the findings support at least work as described in this RFC.(Tr. 67, 86). The opinions were proffered in May and June 2014, after the plaintiff's initial left lung collapse in February 2014 (Tr. 280-292). The plaintiff contends that he did not experience the expected improvement, and thus the ALJ erred in determining that those opinions, which determined that he was limited to a range of medium work, would only need to be further reduced to accommodate his back pain (doc. 17 at 17; see Tr. 30). The plaintiff notes that his right lung collapsed in December 2014 (see Tr. 361, 379-80), and he continued to experience chest pain and dyspnea in March, April, May, and June 2015 (doc. 17 at 17; see Tr. 340-41, 343-45, 348).
The ALJ was required to consider the state agency medical consultants' assessments as opinion evidence as they "are highly qualified and experts in Social Security disability evaluation." See 20 C.F.R. §§ 404.1513a(b), 416.913a(b). Here, the ALJ explained why she afforded only some weight to the opinions of Drs. Hutson and Knott, noting that she reduced the RFC to account for the plaintiff's lumbar degenerative disc disease (Tr. 30). In the RFC assessment, the ALJ noted that following the collapse of the plaintiff's right lung in December 2014, treatment notes indicated that his lungs were "surprisingly clear" in January 2015, and the plaintiff was noted to be doing well post-op with normal respiratory rate and rhythm (Tr. 29; see Tr.352-53). The plaintiff underwent spirometry testing in February 2015, and his effort was described as poor, but his pattern was noted to be normal. He had FEV1/FVC of 66% (Tr. 29; see Tr. 354). Further, the ALJ noted that in March 2015, the plaintiff reported he was smoking one pack of cigarettes per week, and he denied shortness of breath, coughing, and wheezing. He did not fill his prescription for Wellbutrin, which could have aided in smoking cessation. On examination, the plaintiff had normal respiratory rate and rhythm. His emphysema was noted to be stable, and he was urged to quit smoking (Tr. 29; see Tr. 348-49). The ALJ found that the plaintiff's noncompliance suggested that his symptoms were not as disabling as alleged (Tr. 29). Further, the ALJ noted that in April 2015, the plaintiff reported chest pain and dyspnea on exertion after he had mowed the grass for ten minutes. He had normal chest and cardiac examinations, and a stress test was ordered, which the plaintiff had not undergone (Tr. 29; see Tr. 345-46). Further, the ALJ noted that in May 2015, records showed that the plaintiff had not had the recommended stress test, his chest and cardiac examinations were normal, and he continued to smoke at least a third of a pack of cigarettes a day (Tr. 29; see Tr. 343-44). The ALJ noted that in the most recent treatment note in June 2015, the plaintiff's chest pain was unchanged, he was smoking two cigarettes a day, he had not had the stress test that was prescribed earlier in the year, and he expressed interest in a drug to help with smoking cessation that had been offered numerous times before (Tr. 29; see Tr. 340-41).
Based upon the foregoing, the ALJ "'buil[t] an accurate and logical bridge from the evidence to [her] conclusion,'" Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)), and substantial evidence supports the ALJ's RFC assessment, which adequately accounted for the plaintiff's limitations caused by his emphysema by limiting the plaintiff to light work with no concentrated exposure to temperature extremes, wetness, humidity, fumes, dust, chemicals, noxious odors, poor ventilation, or work hazards (Tr. 30). Accordingly, the ALJ did not err in this regard.
Subjective Complaints
Lastly, the plaintiff argues that the ALJ erred in the assessment of his subjective complaints (doc. 17 at 18-22). 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 finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186, at *4. 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 Ruling 96-7p has been superseded by SSR 16-3p, 2017 WL 5180304 (applicable on Mar. 28, 2016). Because this application was adjudicated prior to the date SSR 16-3p became applicable, the court analyzes the plaintiff's allegations under SSR 96-7p. See Best v. Berryhill, C.A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (applying SSR 96-7p under the same circumstances). Regardless, 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.'" Id. (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;
(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.20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, the ALJ found that while the plaintiff's medically determinable impairments could reasonably be expected to cause some of his alleged symptoms, the plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not credible for several reasons (Tr. 28). Specifically, ALJ discussed that while the plaintiff contended that he was on a lung transplant waiting list, the medical evidence of record included no notes regarding the need for a transplant (Tr. 28; see Tr. 46-47). Further, the ALJ noted that just over a month after his right lung collapse, the plaintiff was noted as having "surprisingly clear" lungs and was doing well post-op (Tr. 28; see Tr. 353). In addition, as the ALJ noted, the plaintiff continued to smoke cigarettes despite being urged to quit smoking, which suggested his symptoms were not as disabling as alleged (Tr. 28-29; see Tr. 340, 344, 348-49). See May v. Colvin, C.A. No. 6:13-cv-1360-TMC, 2014 WL 3809500, at *13 (D.S.C. July 30, 2014) ("The plaintiff's complaints regarding disabling respiratory impairments were belied by evidence that he continued to smoke, although he had been medically advised not to do so.") (citation omitted). The ALJ also noted that in May 2015, the plaintiff had normal chest, cardiac, and musculoskeletal examinations, with normal strength and gait, and he continued to smoke at least one third of a pack of cigarettes per day (Tr. 29; see Tr. 343-44). While the plaintiff appeared at the hearing with a cane, the ALJ noted that treatment notes from May 2015 did not indicate a need for a cane for ambulation (Tr. 28; see Tr. 343-44). Further, with regard to the plaintiff's alleged disabling back pain, the ALJ noted that only conservative treatment had been recommended, and the plaintiff reported relief with Neurontin (Tr. 28-29; see Tr. 340, 343, 345). See 20 C.F.R. §§ 404.1529(c), 416.929(c) (stating that type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms is factor for consideration in evaluating the intensity, persistence, and limiting effects of an individual's symptoms). As the ALJ also noted, the plaintiff had not followed up with physical therapy and a stress test as recommended by his doctors (Tr. 29).
The plaintiff contends that the ALJ erred in noting that he was able to mow his grass in April 2015 (doc. 17 at 20). However, the ALJ also noted that the plaintiff complained of chest pain after mowing the grass for ten minutes, but no definitive cardiac diagnosis was indicated (Tr. 28-29). While the plaintiff contends that the treatment note is consistent with his reports that he could only walk for a short time (doc. 17 at 20; see Tr. 345), he essentially asks the court to reweigh the evidence, which it may not do. See Johnson, 434 F.3d at 653 (citation omitted). To the extent that the ALJ may have improperly relied on the plaintiff's "ability to mow the grass" (Tr. 29), the error is harmless because the ALJ gave numerous other reasons for the credibility finding that were supported by substantial evidence. Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding).
The plaintiff argues that this case must be remanded because the ALJ failed to consider his long work history (doc. 17 at 21). However, the ALJ's failure to discuss the plaintiff's work history does not require remand because, "while a long work history may be a factor supporting credibility, it is not controlling." Maner v. Colvin, C.A. No. 1:12-cv-2969-RBH, 2014 WL 4656383, at *5 (D.S.C. Sept. 17, 2014). Here, the ALJ noted the plaintiff's work history as a lineman (Tr. 28) and cited several reasons for discounting the plaintiff's subjective complaints, as discussed above. The plaintiff has not shown that the ALJ's analysis of his subjective complaints is unsupported by substantial evidence or based on an error of law. See, e.g., Moore v. Colvin, C.A. No. 0:15-cv-425-MGL-PJG, 2016 WL 1714117, at *3 (D.S.C. Apr. 29, 2016).
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing,
IT IS RECOMMENDED that the Commissioner's decision be affirmed.
s/Kevin F. McDonald
United States Magistrate Judge August 9, 2018
Greenville, South Carolina