Opinion
C. A. 2:22-cv-04013-BHH-MGB
12-04-2023
FREDDIE F,[1] Plaintiff, v. KILOLO KIJAKAZI,[2] Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Freddie F. (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff filed an application for DIB on May 11, 2020, alleging a disability onset date of December 8, 2014. (R. at 13.) He later amended his disability onset date to August 9, 2017. (R. at 13.) Plaintiff was 46 years old on his date last insured, December 31, 2017. (R. at 15, 22.) Plaintiff originally claimed disability due to, inter alia, blood spot on brain; big laceration on top of head; “surgery of neck from being broken C6 vertical facture”; two surgeries on knee; numbness in left hand; chronic pain in neck; and dislocated hip. (R. at 241.) Plaintiff has past relevant work as a heavy equipment operator, forklift operator, dock builder, lumbar yard worker, front loader, crane operator, bulldozer operator, and tree cutter. (R. at 21.)
Plaintiff's application was denied initially and upon reconsideration. (R. at 13.) After a telephone hearing before an Administrative Law Judge (“ALJ”) on December 8, 2021, the ALJ issued a decision on January 14, 2022, in which the ALJ found that Plaintiff was not disabled. (R. at 13-23.) The Appeals Council denied Plaintiff's request for review, (R. at 1-7), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2017.
(2) The claimant did not engage in substantial gainful activity during the period from his amended alleged onset date of August 9, 2017 through his date last insured of December 31, 2017 (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative joint disease with history of anterior cervical discectomy and fusion at C6-7 and history of minimally displaced fracture to C4 and C7 and history of head injury with subsequent vertigo. (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) except that he could not climb ladders, ropes, or scaffolds. He could occasionally climb ramps and stairs, stoop, and crouch. He could not kneel or crawl. He could occasionally reach overhead bilaterally and had to avoid working at unprotected heights.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on September 8, 1971, and was 46 years old, which is defined as a younger individual age 18-49, on the date last insured (20 CFR 404.1563).
(8) The claimant has a limited high school education (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from August 9, 2017, the amended alleged onset date, through December 31, 2017, the date last insured (20 CFR 404.1520(g)).(R. at 13-23.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ's decision is not supported by substantial evidence because: (1) the ALJ did not adequately explain his findings regarding Plaintiff's residual functional capacity (“RFC”); and (2) the ALJ did not properly evaluate Plaintiff's subjective statements. (Dkt. No. 16.)
The undersigned considers these arguments, below.
A. The ALJ's Decision
The ALJ's decision considers whether Plaintiff was disabled from August 9, 2017, the amended alleged onset date, through Plaintiff's date last insured, December 31, 2017. In his decision, the ALJ noted that Plaintiff was injured while working in September 2014 when a tree fell on him, “causing him to lose consciousness and [he] sustained multiple injuries including cervical spine fractures.” (R. at 19.) The ALJ also noted that Plaintiff was involved in a car accident in June 2015, “during which he dislocated his right hip.” (R. at 19.)
The ALJ found that through the date last insured, Plaintiff had the following severe impairments: “degenerative joint disease with history of anterior cervical discectomy and fusion at C6-7 and history of minimally displaced fracture to C4 and C7 and history of head injury with subsequent vertigo.” (R. at 15.) He found the following alleged impairments to be non-severe: “headaches, neurocognitive disorder, adjustment disorder, anxiety, and mild high-frequency hearing loss.” (R. at 16.) Specific to Plaintiff's headaches, the ALJ stated: “While the claimant has had complaint of headaches, he has not been assessed with intractable migraines and was advised in October 2017 that his headaches were likely caused in part by overuse of pain medication. (Exhibit 6F).” (R. at 16.)
In his discussion of Plaintiff's non-severe impairments, the ALJ referenced Plaintiff's psychiatric evaluation with Dr. John Custer, MD, on November 10, 2016. (R. at 16.) Here, the ALJ noted, inter alia: “Review of medical records indicated that the claimant suffered a subdural hematoma in his cerebellar region along with cervical spine injury in 2014. The claimant stated that since his accident, he has had significant neck pain, headaches, and occasional dizziness.” (R. at 16.) The ALJ stated that he “considered all of the claimant's medically determinable impairments, including those that are not severe, when assessing the claimant's residual functional capacity.” (R. at 16.)
The ALJ found that Plaintiff had the RFC to perform light work in a limited capacity. (R. at 18.) In support, he detailed Plaintiff's hearing testimony (R. at 19) and the medical evidence (R. at 19-21), finding the record ultimately supported his RFC assessment. The ALJ summarized Plaintiff's hearing testimony, including that Plaintiff “alleged severe headaches occurring two to three times weekly, light sensitivity, vertigo, and difficulty with memory and concentration.” (R. at 19.) The ALJ noted that Plaintiff was 50 years old at the December 8, 2021 hearing date, and Plaintiff “did not indicate [at the hearing] whether his symptoms were of the same frequency or severity prior to his December 31, 2017 date last insured.” (R. at 19.) The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause some of his alleged symptoms, . . . [his] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (R. at 19.) The ALJ then discussed some of the medical evidence in the record.
He considered, inter alia, neurology notes from September 14, 2017; October 31, 2017; and December 18, 2017, documenting Plaintiff's ongoing neck pain and Plaintiff's statement that vestibular rehabilitation “has been at least somewhat helpful.” (R. at 20, 455, 459, 464.) As noted by the ALJ, these records further documented Plaintiff's
limited range of motion of his cervical spine in all directions, especially with extension and rotation. Tenderness was noted to the claimant's paraspinal muscles and trapezius. The claimant was continued on Mobic, tramadol, and Norco for cervical pain and gabapentin for cervical radiculitis. Smoking cessation was
emphasized During this time, the claimant was not recommended for injections, medial branch blocks, or anything other than conservative treatment for his neck pain.(R. at 20.) The ALJ also considered records from neurologist, Dr. David Stickler, who treated Plaintiff for “post-concussion syndrome.” (R. at 20.) Specifically, the ALJ stated:
At his August 1, 2017 visit, the claimant reported daily headaches. He was awake, alert, and in no acute distress on exam with normal strength and upper extremities, intact mental status, and normal reflexes and coordination. The claimant was continued on Cambia and Imitrex for abortive therapies and continued on Celexa. At his November 10, 2017 visit, the claimant stated that his daily headaches had improved with medication and indicated that he was scheduled for a balance and mobility claimant [sic] at MUSC. His identifiable headache triggers include wild noises and bright lights and are associated with photophobia, nausea, and vomiting. The claimant was noted to be tolerating his medications well without side effects.(R. at 20.)
Finally, the ALJ considered notes from Plaintiff's visit to Dr. Habib Rizk, director of the vestibular program at MUSC, on October 11, 2017. (R. at 20.) The ALJ summarized this visit as follows:
On presentation, the claimant complained of a three-year history of dizziness following a work accident during which a tree fell on him with associated neck fracture, rib fracture, subdural hematoma, shoulder dislocation, and alleged cognitive problems. The claimant reported poor balance since his accident and noted episodic vertigo and episodic lightheadedness-type dizziness with visual scotoma. The maximum amount of time these episodes last two seconds to minutes. The claimant also stated that he has had headaches since his accident that are severe and associated with photosensitivity. He also reported constant neck pain for which he takes oxycodone and hydrocodone and he stated that he takes prophylactic headache medication. The claimant stated that loud noises trigger his headaches. The claimant denied fluctuating hearing loss and tinnitus with his dizziness. He denied personal or family history of migraine and denied motion sickness. The claimant is able to drive. He denied visual vertigo or problems with crowded places and supermarkets. On system review, the claimant reported lower extremity edema, arthralgias, neck pain, and back pain, headaches, dizziness, paresthesia, weakness, and memory problems....
The claimant was assessed with post-concussive headaches and cervical pain and stiffness related to cervical fractures. He was also found to have medication overuse headaches as he was noted to use opiates for pain management on a daily basis. The
claimant's dizziness was noted to be unequivocally related to his headaches as well as his neck stiffness, limiting his movement. The claimant's headaches were noted to have migraine qualities and could be transformed migraines brought on by concussion along with medication overuse. The claimant was advised that he would have no chance of improvement if he stayed on pain medication. He was started on a 10-day course of prednisone and scheduled for a nerve block in 10 days. The claimant was referred to vestibular rehabilitation to work on cervical pain and motion sensitivity....(R. at 20-21, 358-61.)
The ALJ noted that during Plaintiff's next visit with Mr. Rizk in March 2018, Plaintiff “refused a nerve block and was again recommended to follow the protocol set forth at his October 2017 visit.” (R. at 20, 355.) The ALJ found that Plaintiff's “noncompliance with a treatment regimen as recommended by a vestibular specialist supports finding that his impairments are not as debilitating as alleged.” (R. at 21.)
Following his summary of the medical record, the ALJ found the state agency medical consultants' opinions were “generally persuasive.” (R. at 21.) Here, the ALJ noted that these consultants “found the claimant to have severe impairments but did not assign a residual functional capacity.” (R. at 21; see R. at 57-75.) The ALJ concluded, “The medical evidence of record from August 9, 2017 through December 31, 2017 supports a finding that the claimant's neck pain would limit him to a range of light work and his neck pain and vertigo symptoms necessitated postural and hazard limitations as set forth above.” (R. at 21.) The ALJ stated that his RFC assessment “is supported by the record as a whole.” (R. at 21.)
After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. (R. at 22-23.) The ALJ therefore concluded that Plaintiff was not disabled. (R. at 23.)
B. Consideration of Plaintiff's Headaches
In his brief, Plaintiff argues, inter alia, that the ALJ erred in assessing Plaintiff's headaches as non-severe and in discounting Plaintiff's testimony about the severity and frequency of his headaches. (Dkt. No. 16 at 13-30.) He asserts that the ALJ's failure to properly evaluate Plaintiff's headaches resulted in a deficient RFC analysis. (Id.) He argues that the ALJ's decision should be reversed and benefits awarded, or in the alternative, that this case should be remanded for a new hearing based on these alleged errors. (Id. at 31.) The Commissioner responds that substantial evidence supports the ALJ's RFC assessment and that the ALJ properly discounted Plaintiff's testimony about the alleged severity of his headaches. (Dkt. No. 18 at 6-15.)
1. Standards
A claimant's RFC, which represents “the most [he] can still do despite [his] limitations,” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(1), (a)(3); see also Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of his own limitations. 20 C.F.R. § 404.1545(a)(3).
Social Security Ruling 96-8p further requires that an ALJ's “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).” SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (noting that the ALJ “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved”). Moreover, the ALJ “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.” Id. Every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [ ] the evidence” that supports it. Dowling, 986 F.3d at 387 (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019)) (alteration in original); see Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (explaining that “the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion”) (internal quotation marks omitted) (emphasis in original). Thus, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311.
A claimant's statements are among the evidence the ALJ must consider and reconcile with the RFC assessment. “[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis, 858 F.3d at 865-66 (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). The ALJ proceeds to the second step only if the claimant's impairments could reasonably produce the symptoms he alleges. See 20 C.F.R. § 404.1529(c)(1).
At the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities ....” SSR 16-3p, 2017 WL 5180304, at *4 (S.S.A. Oct. 25, 2017).In evaluating the intensity, persistence, and limiting effects of an individual's symptoms, the ALJ should “examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. Pursuant to SSR 16-3p, the ALJ must explain which of the claimant's symptoms the ALJ found “consistent or inconsistent with the evidence in [the] record and how [the ALJ's] evaluation of the individual's symptoms led to [the ALJ's] conclusions.” Id. at *8. The ALJ must evaluate the “individual's symptoms considering all the evidence in [the] record.” Id.
In March 2016 the Social Security Administration published SSR 16-3p, 2016 WL 1119029 (2016), which rescinds and supersedes SSR 96-7p, eliminates use of the term “credibility,” and clarifies that subjective symptom evaluation is not an examination of an individual's character. SSR 16-3p applies to determinations and decisions made on or after March 29, 2016. Thus, this regulation applies to the instant ALJ decision, which was decided on January 14, 2022. SSR 16-3p, 2017 WL 5180304, at *13 n.27 (S.S.A. Oct. 25, 2017) (“Our adjudicators will apply this ruling when we make determinations and decisions on or after March 28, 2016.”). Although SSR 16-3p eliminates the assessment of credibility, it requires assessment of most of the same factors considered under SSR 96-7p.
The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig v. Chafer, 76 F.3d 585, 595-96 (4th Cir. 1996), but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2017 WL 5180304, at *6; see also Arakas, 983 F.3d at 95 (“[T]he ALJ must consider the entire case record and may ‘not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate' them.” (quoting SSR 16-3p, 2016 WL 1119029, at *5)).
2. Analysis
Upon careful review, the undersigned finds the ALJ has failed to adequately explain the extent to which, if at all, he accounted for Plaintiff's headaches in the RFC assessment. His insufficient analysis of the evidence pertaining to Plaintiff's headaches, including Plaintiff's subjective statements, frustrates meaningful appellate review, such that remand is warranted.
As discussed above, the ALJ found Plaintiff's headaches were a non-severe impairment at step two of his decision solely because: (1) “he has not been assessed with intractable migraines”; and (2) he “was advised in October 2017 that his headaches were likely caused in part by overuse of pain medication.” (R. at 16.) “An impairment can be considered as ‘not severe' only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984) (cleaned up). “Ordinarily, this is not a difficult hurdle for the claimant to clear.” Albright v. Comm'r of Soc. Sec., 174 F.3d 473, 474 n.1 (4th Cir. 1999).
Here, the ALJ did not sufficiently explain why Plaintiff's headaches would have no more than a minimal effect on Plaintiff's ability to do basic work activities, such that they should be characterized as non-severe. While there may have been no express diagnosis of “intractable migraines,” the record shows Plaintiff consistently sought treatment for his daily headaches stemming from his 2014 concussion, including throughout the alleged period of disability. (R. at 338-39, 358, 504, 507, 512, 570.) And, while one provider indicated Plaintiff's headaches were caused in part by “medication overuse,” he also expressly stated Plaintiff's “headaches have migraine qualities and could be transformed migraines brought on by the concussion along with the medication overuse.” (R. at 360.) Plaintiff's brief reference to this treatment record does not adequately support his explanation of the severity of Plaintiff's headaches at step two.
In her brief, the Commissioner does not directly dispute that the ALJ erred at step two by characterizing Plaintiff's headaches as non-severe. Rather, the Commissioner argues that any error was harmless “because the ALJ specifically considered Plaintiff's headaches when making the RFC determination.” (Dkt. No. 18 at 11.) Relevant here, “[c]ourts in this district have held that even if an ALJ errs in finding an impairment non-severe at Step Two, the error is harmless if the ALJ considers the impairment in subsequent steps of the sequential evaluation process.” Mary B. v. Kijakazi, No. 5:22-cv-2321-KDW, 2023 WL 5444599, at *9 (D.S.C. Aug. 24, 2023). While the ALJ discussed the medical evidence and Plaintiff's hearing testimony pertaining to Plaintiff's headaches in assessing Plaintiff's RFC, he failed to explain whether Plaintiff's headaches resulted in functional limitations. Given the evidence in the record on this issue, the undersigned cannot find the ALJ's decision is supported by substantial evidence.
As discussed above, the ALJ acknowledged that at the telephone hearing, Plaintiff “alleged severe headaches occurring two to three times weekly [and] light sensitivity.” (R. at 19.) A review of Plaintiff's hearing testimony reveals the following relevant testimony:
Q....I know you suffered a head injury with your on-the-job accident. Describe the symptoms you have from your head injury.
A. I get real bad headaches and I get lightheaded and dizzy. And the sunlight hurts my eyes real bad and makes me get . . . headaches and I get them so bad where I can't do nothing.
Q. How often do you have headaches that are incapacitating or that make you stop doing anything?
A. Two to three times a week I've got to lay down . . . and get away from everything, it hurts so bad.....
Q. What helps with your head condition or your headaches?
A. My medication when I get it approved and laying down and silence, but mostly my medication, if I get it and take it.(R. at 41-42.)
While the ALJ stated that Plaintiff “did not indicate [at the hearing] whether his symptoms were of the same frequency or severity prior to his December 31, 2017 date last insured,” he did not appear to discount Plaintiff's hearing testimony for this reason. (R. at 19.) Rather, the ALJ concluded that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (R. at 19.) However, as discussed below, the ALJ appeared to cherry pick evidence to support his findings of inconsistency.
Notably, Plaintiff's hearing testimony is consistent with treatment records in October and November of 2017 documenting that Plaintiff's headaches were associated with photophobia, nausea and vomiting. (R. at 358, 504.) The ALJ discussed these records in his decision, also noting that Plaintiff's headaches were triggered by loud noises and bright lights. (R. at 20-21.) Further, even when Plaintiff claimed that his headache medication provided “moderate improvement” in November of 2017, his treatment records note that the headaches still occurred every day and could “last up to an hour and the more intense one[s] can last all day.” (R. at 504.)
The ALJ discounted Plaintiff's allegations about the severity of “his impairments” mainly because of Plaintiff's “noncompliance with a treatment regimen recommended by a vestibular specialist.” (R. at 21.) However, the ALJ cherry picked certain portions of the referenced treatment records in his discussion here. The record shows that Plaintiff was referred to vestibular specialist, Dr. Rizk, on October 10, 2017 “for [Plaintiff's] complaint of dizziness.” (R. at 358.) During Plaintiff's initial visit with Dr. Rizk on October 11, 2017, Dr. Rizk found that Plaintiff's “dizziness is unequivocally related to his headaches as well as his neck stiffness which is limiting his movement. His headaches have migraine qualities and could be transformed migraines brought on by the concussion along with the medication overuse.” (R. at 360.) Dr. Rizk noted that “[m]edication overuse headaches is difficult to treat but there is no chance of improvement if he stays on the pain medication.” (R. at 360.) He proposed a “weaning process,” to be followed by “three nerve blocks.” (R. at 360.) Dr. Rizk stated that once Plaintiff “is off the pain medications, I will consider a prophylactic agent.” (R. at 360.) When Dr. Rizk next saw Plaintiff approximately five months later, he noted that Plaintiff's neurologist had “weaned [Plaintiff] off the hydrocodone,” but that Plaintiff still takes tramadol every day and still has headaches. (R. at 355.) Dr. Rizk noted that Plaintiff and his wife “were adamant that they didn't want nerve blocks done,” and Dr. Rizk stated he would “defer to” Plaintiff's neurologist for treatment of Plaintiff's headaches. (R. at 355.) Notably, in his discussion of these records, the ALJ did not mention the portions indicating “medication overuse headaches is difficult to treat” and that the provider ultimately deferred to Plaintiff's neurologist for the treatment of Plaintiff's headaches. (R. at 20-21.) These omissions are troubling given that the ALJ largely relied on these records to discount Plaintiff's allegations about the severity of his headaches. Without more, the undersigned cannot find that the ALJ sufficiently explained how the evidence was inconsistent with Plaintiff's statements about the severity of his headaches. See 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2017 WL 5180304, at *10 (providing that 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”).
In short, although the ALJ discussed certain evidence pertaining to Plaintiff's headaches, he failed to explain whether this impairment resulted in functional limitations. In his decision, the ALJ only specified that the medical evidence in the record “from August 9, 2017 through December 31, 2017 supports a finding that the claimant's neck pain would limit him to a range of light work and his neck pain and vertigo symptoms necessitated postural and hazard limitations” as set forth in the RFC. (R. at 21.) The ALJ did not clarify whether any of the limitations in the RFC were to address Plaintiff's headaches.
Critically, Plaintiff's hearing testimony and the record evidence indicates the disabling effects of Plaintiff's headaches could render him disabled. At the hearing, the vocational expert testified that there would be no jobs available for a person who was off task for more than 20% of an eight-hour workday. (R. at 50.) The vocational expert also testified that there would be no jobs available to a person who was absent three or more days per month on a consistent basis. (R. at 50.) Thus, a finding of disability may result if the ALJ were to find that Plaintiff's limitations caused by his headaches included being off task for more than 20% of the day or being absent three days per month on a regular basis.
Because the ALJ did not adequately explain whether Plaintiff's headaches resulted in functional limitations, he did not build the necessary logical bridge between the evidence and his conclusion about Plaintiff's RFC. Accordingly, the undersigned cannot find his decision is supported by substantial evidence. See Arakas, 983 F.3d at 95 (“To pass muster, ALJs must ‘build an accurate and logical bridge' from the evidence to their conclusions.” (quoting Monroe, 826 F.3d at 189)); Tiffany B. v. Saul, No. DLB-19-cv-2408, 2020 WL 5203455, at *2 (D. Md. Sept. 1, 2020) (remanding because “[n]owhere in the decision does the ALJ explain how plaintiff could sustain a normal workday and workweek with her migraines and their symptoms”); Colie v. Saul, No. 4:18-cv-107-FL, 2019 WL 4619517, at *5 (E.D. N.C. Aug. 13, 2019) (“The ALJ's failure to adequately explain the extent to which, if any, the RFC accommodates plaintiff's migraines precludes the court from conducting meaningful substantial evidence review of the ALJ's decision.”), adopted in part, rejected in part, 2019 WL 4580371 (E.D. N.C. Sept. 20, 2019); Thomas v. Saul, No. 3:18-cv-700 (JAG), 2019 WL 3801850, at *6 (E.D. Va. July 25, 2019) (remanding for failure to adequately explain the severity of plaintiff's headaches and migraines at step two and failing to consider the limiting effects, if any, of these impairments in assessing plaintiff's RFC; noting that while “the ALJ acknowledged medical evidence describing Plaintiff's headaches and migraines, . . . the ALJ failed to discuss whether Plaintiff's headaches and migraines resulted in functional limitations”), adopted by, 2019 WL 3779515 (E.D. Va. Aug. 12, 2019).
C. Remaining Allegations of Error
Plaintiff also argues that remand is necessary because the ALJ: (1) failed to properly evaluate Plaintiff's neurocognitive disorder, adjustment disorder, and the effects of his head trauma in formulating Plaintiff's RFC; and (2) failed to properly evaluate Plaintiff's subjective statements about his neurocognitive disorder, adjustment disorder, and cervical spine problems. (Dkt. No. 16 at 13-30.) The undersigned does not address these remaining allegations, as they may be rendered moot on remand. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).