Opinion
C/A No.: 1:17-cv-02478-DCC-SVH
09-24-2018
Darren Gooden, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about November 20, 2013, Plaintiff filed an application for DIB in which he alleged his disability began on November 15, 2012. Tr. at 86, 204-08. His application was denied initially and upon reconsideration. Tr. at 98, 115, 122, 124. On July 20, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Mattie Harvin-Woode. Tr. at 41-85 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 8, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 13-40. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 15, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the hearing. Tr. at 46. He completed high school, and his past relevant work ("PRW") was as a panel board inspector or builder. Tr. at 46, 48, 50. He alleges he has been unable to work since November 15, 2012. Tr. at 44, 205.
2. Medical History
On October 4, 2011, Plaintiff was evaluated by Ike C. Stewart, M.D. ("Dr. Stewart"), for knee pain, stiffness, and swelling. Tr. at 486-89. Dr. Stewart assessed gout, ordered tests, administered an injection, and instructed Plaintiff to take medications as prescribed. Tr. at 488. On October 12, 2011, Plaintiff reported the medications were not helping his knee pain. Tr. at 490-92. Dr. Stewart assessed diabetes mellitus, hyperlipidemia, and knee arthritis. Id.
On October 26, 2012, Plaintiff visited the urgent care at Colonial Family Practice and was evaluated by Edward J. Meyers, M.D. ("Dr. Meyers"). Tr. at 645. Plaintiff complained of lower back pain, reporting he had injured his back at work. Id. An x-ray of the lumbar spine revealed no fracture or dislocation. Tr. at 648. Dr. Meyers noted Plaintiff had pain while bending, directed him to undertake light duty for one week, and recommended he alternate Tylenol and Motrin. Tr. at 493, 646-47.
On October 27, 2012, Plaintiff was evaluated by Shelley G. Stevens ("Stevens"), a physician's assistant in urgent care at Colonial Family Practice. Tr. at 642-44. Plaintiff complained his back pain had increased and the medications were not helping. Id. Stevens noted Plaintiff ambulated without difficulty and his x-ray was negative. Tr. at 644. Stevens recommended Plaintiff continue his prescriptions for one week. Id.
On October 31, 2012, Plaintiff was evaluated by Dr. Stewart for complaints of continued back pain. Tr. at 639-41. Dr. Stewart's examination revealed paraspinal muscle tenderness, but a normal range of motion ("ROM") and strength limits. Tr. at 640. Dr. Stewart prescribed Vicodin and Skelaxin, indicating Plaintiff could return to work at a sedentary job only. Tr. at 641.
On November 5, 2012, Plaintiff was evaluated by Thomas L. Lucas, III, M.D. ("Dr. Lucas"), for a follow up on his chronic problems and lower back pain. Tr. at 635-38. Plaintiff reported his pain was moderate to severe, worsened with certain movements, and was constant, but Skelaxin and Vicodin helped his pain. Tr. at 635. Dr. Lucas scheduled a magnetic resonance imaging ("MRI"), noting Plaintiff should not engage in heavy lifting or bending and should continue sedentary work. Tr. at 637.
On November 9, 2012, Plaintiff was evaluated by Judith Chontos-Komorowski, M.D. ("Dr. Chontos-Komorowski") in the emergency department of Palmetto Baptist Hospital. Tr. at 368-70. Plaintiff complained of low back pain with some radiation to his hips and thighs that had lasted for several weeks. Tr. at 368. Plaintiff denied a specific injury, but noted he started a new line at work and thought he felt something click or pull on October 25, 2012, as he was working. Id. Plaintiff reported his pain worsened when he changed positions, but he had been able to walk. Id. Dr. Chontos-Komorowski noted Plaintiff's cervical, thoracic, and lumbar spines were nontender at the midline, but he did have bilateral paralumbar tenderness. Tr. at 369. Dr. Chontos-Komorowski also noted Plaintiff's strength was symmetric, and he walked with a stable gait. Id. Dr. Chontos-Komorowski indicated Plaintiff's exam was suggestive of sciatica. Id. Based on her review of lumbar spine imaging, Dr. Chontos-Komorowski indicated Plaintiff had degenerative changes and spondylolisthesis secondary to a bilateral pars defect, but no acute abnormality. Tr. at 369, 371. Dr. Chontos-Komorowski started Plaintiff on oral steroids, analgesics, and Flexeril, gave him a work excuse, and directed him to follow up with an orthopedist. Tr. at 369.
On November 13, 2012, Plaintiff presented to Midlands Orthopaedics with a moderate amount of distress and inability to sit comfortably. Tr. at 401. An MRI was scheduled to evaluate for a probable herniated disc. Id.
On November 27, 2012, an MRI of Plaintiff's lumbar spine revealed "a persistent broad-based bulge with superimposed central and somewhat superiorly oriented protrusion/herniation resulting in moderate degree of central canal narrowing" at L4-5 and "additional multilevel degeneration" noted with L1-2 being unremarkable. Tr. at 377, 479.
On November 30, 2012, Plaintiff was seen at Midlands Orthopaedics with complaints of lower back pain. Tr. at 394, 399-401. Plaintiff appeared to be in a moderate amount of discomfort, but had improved since the last visit. Tr. at 400. Robert M. Peele, Jr., M.D. ("Dr. Peele"), prescribed Flexeril and Percocet and scheduled a lumbar epidural steroid injection. Tr. at 401.
On December 7, 2012, Plaintiff received a lumbar epidural steroid injection at Midlands Orthopaedics. Tr. at 395-98.
On January 2, 2013, Plaintiff was seen at Midlands Orthopaedics for a follow-up appointment. Tr. at 385, 393-95. Plaintiff reported a twenty percent improvement following the injection, but he continued to have pain down his right leg. Tr. at 394. Although it appeared Plaintiff was in less discomfort than he had been previously, he still appeared uncomfortable, shifting his weight constantly. Id. Flexeril and Percocet were prescribed and another lumbar epidural steroid injection was scheduled. Tr. at 395.
On January 7, 2013, Plaintiff received a second lumbar epidural steroid injection at Midlands Orthopaedics. Tr. at 385-92.
On January 29, 2013, Plaintiff presented to Midlands Orthopaedics for a follow-up appointment. Tr. at 383-85. Plaintiff reported a twenty percent improvement after his second injection, similar to the first. Tr. at 384. Plaintiff was referred to a surgeon and was prescribed Meperidine and Naproxen. Tr. at 385.
On February 27, 2013, Plaintiff was seen at Columbia Neurosurgical Associates by Brett C. Gunter, M.D. ("Dr. Gunter") for complaints of back and leg pain. Tr. at 467. Plaintiff described the onset of his back injury and indicated only minimal relief from injections. Id. Plaintiff explained his back pain was a constant ache that worsened when he stood, walked, bent, or sat too long. Id. Plaintiff reported his pain was eased temporarily and marginally by changing positions. Id. Plaintiff described his hip and leg pain as an intermittent, sharp, shooting pain that traveled from his back to his hips, down his anterior thighs, and into his lower legs and that increased during transitions, standing, walking, and sitting too long. Id. Dr. Gunter noted Plaintiff's MRI from November 27, 2012, showed a grade I anterolisthesis of L4 on L5 and a herniated nucleus pulposis at L4-5 with severe central and lateral recess stenosis. Tr. at 468. Dr. Gunter diagnosed lumbar herniated nucleus pulposis and spondylolisthesis at L4-5 with weakness in the lower extremities. Id. Dr. Gunter planned to proceed with surgery and prescribed Lortab and Flexeril. Tr. at 469.
On April 24, 2013, Plaintiff confirmed he desired surgery, and Dr. Gunter indicated Plaintiff should remain out of work. Tr. at 411, 470-71.
On May 2, 2013, Plaintiff underwent a right L4-5 transforaminal lumbar interbody fusion without complications in a surgery performed by Dr. Gunter. Tr. at 407-08, 412-13, 477-78. The following day, Dr. John W. Haynes, M.D. ("Dr. Haynes"), examined Plaintiff and found the hardware was intact, alignment was satisfactory, and there were no compression deformities or other acute pathology evident. Tr. at 409. After his operation, Plaintiff had elevated blood sugar levels, which were eventually controlled through medication. Tr. at 412. Plaintiff's pain continued to improve each day, and he was discharged on May 10, 2013. Tr. at 412, 436-41. His medications included Flexeril, Percocet, Roxicodone, Lantus, Novolog, and a multivitamin. Tr. at 413.
On June 5, 2013, an image of Plaintiff's spine showed postoperative L4-5 fusion with mild disc space narrowing at the operative site and at L5-S1, but the remainder of the lumbar spine appeared unremarkable with no spondylolysis or spondylolisthesis present. Tr. at 481. Plaintiff reported not doing much better overall and continuing to have a lot of back pain. Tr. at 472. Dr. Gunter indicated Plaintiff was "openly tearful" and "ha[d] some trouble with communicating." Id. According to Dr. Gunter, there had been a "[t]echnically satisfactory outcome, but clinically no improvement." Id. Dr. Gunter planned for Plaintiff to taper off his Oxycodone and Percocet, as well as transition from a walker to a cane. Id. Dr. Gunter recommended Plaintiff seek psychiatry or behavioral consultation for management of his depressed mood and remain off work. Id.
On July 31, 2013, an image of Plaintiff's spine showed stable appearance with posterior fusion at L4-5, mild disc space narrowing at L5-S1, and mild anterior spondylolisthesis at L4-5. Tr. at 482. Plaintiff presented to Dr. Gunter for a follow-up visit and reported reducing his pain medication to two Oxycodone and two Percocet per day, but he was still experiencing a lot of pain with little relief. Tr. at 466. Dr. Gunter noted satisfactory appearance of the interbody device and instrumentation based on his review of Plaintiff's x-ray. Id. Dr. Gunter planned for Plaintiff to wean off Percocet, get out of his brace, remain off work, and begin therapy to develop a home exercise program. Id.
On August 27, 2013, Plaintiff began treatment with Post Trauma Resources. Tr. at 553-54. Lawrence Bergmann, Ph.D. ("Dr. Bergmann"), evaluated Plaintiff at his initial appointment, noting he had a flat affect and was depressed. Tr. at 554. Dr. Bergmann listed diagnoses of major depressive disorder (single episode, moderate, principal), pain disorder associated with psychological factors and medical condition, and chronic pain with a global assessment of function ("GAF") score of 45. Id. Dr. Bergmann noted Plaintiff's attention and concentration were characterized by distractibility. Id. Dr. Bergmann also noted Plaintiff's psychological issues had developed following his work injury and he required mental health treatment, including psychotherapy and medication prescribed by a psychiatrist. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
On August 28, 2013, Plaintiff presented for a follow-up visit with Dr. Gunter. Tr. at 474. Plaintiff reported continuing pain in his lower back and taking two Percocet per day. Id. Dr. Gunter directed Plaintiff to begin physical therapy for four weeks and then return to light duty on the job with ten-minute rest breaks every thirty minutes. Id.
On September 4, 2013, Plaintiff saw Roger Deal, M.D. ("Dr. Deal"), a medically-licensed psychiatrist at Post Trauma Resources. Tr. at 560. Dr. Deal noted Plaintiff was having positive results on his sleep with Trazodone, recommended adding medication to help control anxiety associated with chronic pain, and prescribed small doses of Valium. Id.
On September 5, 2013, Plaintiff began attending physical therapy sessions at Sumter Physical Therapy Clinic. Tr. at 453-63. Dr. Gunter had ordered Plaintiff to attend physical therapy three times a week for six weeks. Tr. at 455. He specifically indicated the therapy should include "[l]umbar physical therapy with emphasis on local measures such as ultrasound, heat, ice, massage, and [a transcutaneous electrical nerve stimulation ('TENS") unit], with core and extremity strengthening, [ROM] exercises, and [a] home exercise program." Id. A progress report by Sumter Physical Therapy Clinic reported Plaintiff attended eighteen visits before stopping due to pain. Tr. at 458; see also Tr. at 453-63 (describing therapy sessions on September 9, 13, 16, 18, 23, 25; October 2, 9, 14, 21, 23, 28, 30; and November 4, 6, 8, and 11 with Amy Watts, physical therapist assistant, or Rocklin Hoover, a physical therapist).
On September 19, 2013, Plaintiff presented to Dr. Deal and reported his surgeon had cleared him to return to work, but he was puzzled because he did not think he was capable of doing his job given his current pain level. Tr. at 562. Plaintiff was frustrated he was not being sent for pain management treatment. Id. Dr. Deal noted Plaintiff's sleep had improved and he had tolerated Valium well, so he increased Trazodone and continued Valium. Id.
On September 25, 2013, Plaintiff saw Dr. Gunter at a follow-up appointment. Tr. at 475. Plaintiff reported continuing lower back and leg pain that had worsened over time. Id. Plaintiff indicated he was unable to continue therapy, as it was worsening his pain. Id. Dr. Gunter directed Plaintiff to continue therapy and not take more than one Percocet per day. Id. Dr. Gunter indicated Plaintiff would need a referral to a pain management specialist if he could not manage his pain. Id.
On October 1, 2013, Plaintiff presented to Dr. Bergmann. Tr. at 555. Dr. Bergmann observed Plaintiff used a cane, shifted consistently in his chair, and reported continued pain and physical limitations with a depressed mood. Id. Dr. Bergmann noted Plaintiff's response to interventions was good. Id.
On October 15, 2013, Plaintiff met with Dr. Bergmann, who noted he appeared to be in pain and stood up for part of the session. Tr. at 556. Plaintiff reported feeling overwhelmed, depressed, and anxious. Id. Dr. Bergmann noted he would discuss Plaintiff's concern that he was experiencing side effects from sleep medication with Dr. Deal. Id. Dr. Deal noted Plaintiff was extremely uncomfortable and unable to sit in a chair for long without getting up to move around. Tr. at 563. Dr. Deal increased Plaintiff's Valium and Trazodone medications, indicating he had a marked increase in pain levels with nothing to take for pain control. Id.
On October 28, 2013, Plaintiff began treatment with William C. Aldrich, M.D. ("Dr. Aldrich"), at Colonial Family Practice. Tr. at 494-98. Plaintiff's primary complaint was more frequent bowel movements than normal. Tr. at 496. As part of his physical examination, Dr. Aldrich noted Plaintiff had lumbar spine pain with radiculopathy, but a normal spine ROM. Tr. at 497. Plaintiff was also assessed for diabetes, gout, hyperlipidemia, and diarrhea. Tr. at 498. Dr. Aldrich referred Plaintiff to Michael T. Warrick, M.D. ("Dr. Warrick"), for his lumbar spine pain and ordered lab tests. Tr. at 498, 521-25.
On October 29, 2013, Plaintiff met with Dr. Bergmann, who noted Plaintiff was in pain and could not sit for the entire session. Tr. at 557. Plaintiff reported continuing pain with poor pain management, experiencing confusion, feeling overwhelmed, having gastrointestinal issues, and not sleeping. Id. Dr. Bergmann noted Plaintiff's response was good. Id. Dr. Deal noted Plaintiff had been unable to keep his medications down due to an upset stomach, and he decreased the dosages of his medications. Tr. at 564.
On November 7, 2013, Plaintiff presented to the Lexington Medical Center for back pain, and a computed tomography ("CT") scan of Plaintiff's lumbar spine depicted a "L4-5 fusion with right sided laminotomies." Tr. at 448-51. The findings revealed "some heterotopic bone formation posteriorly at the L4-5 level, which results in mild canal stenosis without definite nerve root contact" and "mild degenerative disc disease . . . with mild broad-based disc bulge resulting in mild canal stenosis and mild bilateral neural foraminal narrowing." Tr. at 483.
On November 14, 2013, Dr. Bergmann saw Plaintiff and noted pain was a primary stressor for Plaintiff, who bent over in apparent pain several times, wincing when walking. Tr. at 558. Dr. Bergmann noted Plaintiff's response was "ok, not much he can do at this point." Id. Dr. Deal noted Plaintiff was very distressed and fearful of the prescribed medications, so he had not been taking them with his upset stomach. Tr. at 565. Plaintiff reported his pain was very high and made him miserable. Id. Dr. Deal suggested Plaintiff discontinue his medications until his gastrointestinal problems improved and noted his response remained symptomatic with insomnia, anxiety, depression, and chronic pain. Id.
On November 20, 2013, Plaintiff presented to Dr. Gunter for a follow-up visit. Tr. at 464-65, 476. Dr. Gunter noted Plaintiff continued to have intractable lower back, leg, and hip pain; he had a reduced ROM in all cardinal planes tested; and used a cane when walking; however, the surgical scar over his lumbar spine was well healed and the power in his lower extremities was five out of five bilaterally. Tr. at 464. Dr. Gunter further noted the CT scan of Plaintiff's lumbar spine showed appropriate placement of the instrumentation. Id. Dr. Gunter recorded the following assessment:
Solidly fused and adequately decompressed. He has no further surgical alternatives. He has had no benefit from surgery and he considers his symptoms worse. Every treatment including non-surgical treatments has resulted in worsening of his symptoms including therapy and lumbar epidural steroid injections. His current syndrome of pain appears magnified compared to my expectations especially when I consider other patients having undergone a similar treatment. He has no further surgical alternatives. He is at [m]aximum medical improvement from a surgical standpoint. He is permanently restricted to MEDIUM duty according to the USDL guidelines due to mechanical alteration of his spine from fusion. He believes he is completely "disabled" due to pain. Due to his "uncontrollable back pain" he should see and be managed by a Pain Management Specialist. His Impairment rating is 23% of the whole person according to the American Medical Association Guides to the Evaluation of
Permanent Impairment 5th edition with a reasonable degree of medical certainty.Id. Dr. Gunter temporarily restricted Plaintiff from work until a pain management specialist could achieve better pain control for him. Tr. at 465.
On November 22, 2013, Dr. Aldrich saw Plaintiff for an upset stomach and for follow up on lab tests. Tr. at 499-501, 526-28. Dr. Aldrich assessed hypertension, hyperlipidemia, diabetes, abdominal pain, gout, post-traumatic stress disorder, and lumbar spine pain. Tr. at 501. Dr. Aldrich noted Plaintiff's musculoskeletal examination revealed pain, but normal ROM, muscle strength, and muscle tone. Id. Dr. Aldrich indicated Plaintiff needed pain management for his lumbar spine pain, referred him to Dr. Alejo for his abdominal pain, and prescribed medications. Tr. at 501, 533.
Dr. Alejo's full name was not provided. Tr. at 501.
On December 12, 2013, Plaintiff presented to Dr. Bergmann in pain and hunched over. Tr. at 559. Plaintiff reported his pain was poorly controlled, and he continued to feel depressed, frustrated, and unsure about his next steps. Id. Plaintiff informed Dr. Deal that Imodium had helped to control his bowel problems. Id. Dr. Deal advised Plaintiff to increase his Trazodone and take five milligrams of Valium, if needed, at night. Tr. at 566.
On December 16, 2013, Dr. Aldrich saw Plaintiff and assessed hypertension, diabetes, diarrhea, erectile dysfunction, lumbar spine pain, and chronic back pain. Tr. at 503-05, 530-32.
On January 16, 2014, Plaintiff presented to Dr. Bergmann, who noted he was very depressed, avoided all eye contact, was discouraged, and had very poor pain control. Tr. at 541-42. Dr. Deal noted some anxiety reduction, but Plaintiff remained easily agitated and frustrated by pain. Tr. at 545-46. Dr. Deal added five milligrams of Valium to Plaintiff's medication regimen to help muscle tension and anxiety. Id.
On January 27, 2014, Plaintiff began treatment at Sumter Spine Pain Center and met with Dr. Warrick on Dr. Aldrich's referral. Tr. at 653-55. Plaintiff reported lower back pain that radiated into both buttocks and stated his prior surgery, injections, and physical therapy had not diminished his pain. Tr. at 653. Plaintiff reported Percocet had worked initially, but its effect had since lessened. Id. After evaluating Plaintiff, Dr. Warrick noted the following:
Overall, patient's physical activity level is low. He reports other medical issues that make a more productive lifestyle difficult including chronic diarrhea. He spends a lot of time in the bed or on the couch. He reports multiple depressive symptoms.
His exam today is notable for decreased lumbar ROM in flexion and extension, diffuse lumbar [tenderness to palpation]. Intact and brisk reflexes bilaterally and negative [straight leg raises].
Overall, I have concern that his symptoms are more pronounced and debilitating than might be expected for his current level of pathology. I am concerned for underlying psychological issues such as mood disorder, as well as possible secondary gain—this is obviously common in this patient population.Tr. at 655.
At this point, I would suggest that he has a mixed mood disorder. He sees a psychiatrist in Columbia—post-trauma center. Currently taking trazodone and diazepam to improve sleep and reduce anxiety. He is not currently on any other antidepressants.
At this point I will start Ultram ER 200mg daily, consider Cymbalta/Effexor XR for dual purpose pain improvement and mood stabilization. It would be a goal to reduce his opioid reliance over time, his likelyhood [sic] of functional benefit has more to do with improvement in mood and his perceived debilitation than organic pain relief.
On January 28, 2014, James Weston, M.D. ("Dr. Weston"), completed a Physical Residual Functional Capacity Assessment ("RFC") as a non-examining consultant for Plaintiff's Disability Determination Explanation. Tr. at 93-94. Dr. Weston opined Plaintiff had exertional limitations to occasionally lift or carry twenty pounds, frequently lift or carry ten pounds, and stand or walk for six out of eight hours. Tr. at 93. In addition, he opined Plaintiff could occasionally climb ramps, stairs, ladders, ropes, or scaffolds, and occasionally balance, stoop, kneel, crouch, or crawl. Tr. at 93-94. Finally, he found Plaintiff had no manipulative, visual, communicative, environmental, and push or pull limitations. Id.
On February 24, 2014, Plaintiff presented to Dr. Aldrich, complaining of continued back pain with no relief from Percocet. Tr. at 512-16. Dr. Aldrich noted Plaintiff had pain in both of his hands and assessed hypertension, diabetes, diarrhea, fatigue, hyperlipidemia, lumbar spine pain, and hand pain. Tr. at 516.
On February 25, 2014, Plaintiff presented to Dr. Deal, who attempted to diagnose the source of his gastrointestinal symptoms. Tr. at 547.
On February 27, 2014, Plaintiff presented to Dr. Warrick, reporting his pain continued and the Ultram ER was not helping much. Tr. at 651-52. Dr. Warrick discussed objective functional goals with Plaintiff and instructed that, by his next visit, he was to walk a mile, spend 8:00 a.m. to 10:00 p.m. out of bed, and practice guitar for thirty minutes a day. Tr. at 652. Dr. Warrick prescribed Abilify as an adjunctive anti-depressant. Id.
On March 12, 2014, Plaintiff saw Dr. Bergmann, who noted Plaintiff cried hard during his appointment and was so upset that the session had to be stopped a few times. Tr. at 542. Plaintiff reported he was angry with his treatment, had lost his workers' compensation case, and was not receiving weekly benefits. Id. Plaintiff further reported continued pain and physical limitations. Id. Dr. Bergmann discussed Plaintiff's frustration and emphasized having realistic expectations. Id. Plaintiff also saw Dr. Deal, who noted Plaintiff's anxiety control had improved with Valium, but his pain continued to be a major issue. Tr. at 548.
On March 17, 2014, Dr. Aldrich saw Plaintiff for a follow-up appointment. Tr. at 512-13, 518-20. Plaintiff reported his back pain had worsened and his stomach was upset. Id. Dr. Aldrich noted Plaintiff saw Dr. Warrick for his lumbar spine pain, and he evaluated Plaintiff for gastrointestinal issues. Tr. at 520.
On March 26, 2014, Plaintiff presented to Dr. Bergmann and reported he remained depressed and concerned about his future, finances, and legal issues. Tr. at 543. Plaintiff also reported continued pain and physical limitations. Id. Dr. Bergmann observed Plaintiff had to get up and stretch during the session and listed his response to interventions as fair. Id. Plaintiff also met with Dr. Deal, who indicated Plaintiff's medications appeared to be helping him. Tr. at 550. Plaintiff reported taking Valium at night was helpful, although his pain continued to wake him from his sleep. Id. Dr. Deal noted a modest reduction in anxiety and sleep disturbance. Id.
On March 27, 2014, Plaintiff presented to Dr. Warrick and reported constant pain, inability to walk a mile (but ability to walk to his mailbox and back), getting out of bed for thirty-minute increments, and playing the guitar more often. Tr. at 649-50. Plaintiff indicated Abilify did not agree with his diabetes and Ultram gave him headaches. Id. A review of his systems revealed back pain, numbness, tingling, and difficulty walking, noting Plaintiff used a cane for added support. Id. Dr. Warrick noted:
Overall poor response to treatment. Poor compliance with functional goals discussed at previous visit. Perceived disability grossly out of proportion to demonstrable pathology on exam and imaging. I believe that his biggest problem is psychological, and that he would benefit substantially from a structured behavioral therapy program. I discussed with him that until such time that he is mentally prepared to comply with activity goals, I cannot do anything more for him.Tr. at 650.
On April 9, 2014, Dr. Deal filled out a questionnaire regarding Plaintiff's mental health and its effect on his ability to work. Tr. at 535. Dr. Deal indicated Plaintiff was diagnosed with adjustment disorder with anxiety, depression, and chronic pain. Id. Dr. Deal also indicated Plaintiff was properly oriented and had appropriate thought content, but he had slowed and distractible thought processes, his mood was depressed, and his attention, concentration, and memory were all poor. Id. Dr. Deal noted he was Plaintiff's psychiatrist and Valium was helping his condition. Id. According to Dr. Deal, Plaintiff had obvious work-related limitations because he had difficulty focusing due to pain. Id. Dr. Deal noted Plaintiff was capable of managing his funds. Id.
On April 15, 2014, Plaintiff was examined by Douglas R. Ritz, Ph.D. ("Dr. Ritz"). Tr. at 536-39. Dr. Ritz noted Plaintiff's gait was slow, and he used a cane. Tr. at 537. During the interview, Plaintiff was "up and down out of his seat" because of his back discomfort. Id. Dr. Ritz noted Plaintiff's eye contact was intermittent and he appeared to be in a good bit of physical discomfort based on his facial grimacing. Id. Plaintiff appeared sad, and his affect was congruent. Id. Plaintiff completed a Mini-Mental Status examination and scored 23/30, which is in the mild range of impairment. Tr. at 538. Dr. Ritz noted Plaintiff was able to remember one of three words after a few minutes and made three errors during the serial 7's, doing them quite slowly. Tr. at 537. Dr. Ritz indicated Plaintiff's cognitive skills likely fell in the average to low average limits. Tr. at 538. Dr. Ritz concluded Plaintiff's main problem was his chronic pain and he had "a mild level of major depression that in and of itself would not prevent him from performing in a work-related setting." Id. He added "[i]n fact, if he were able to find a job that would be within his physical capabilities, likely this would do a great deal in terms of alleviating some of that depression." Id. Dr. Ritz noted Plaintiff took care of his personal grooming contingent on his level of pain, did no household chores because of pain, and did not socialize often. Id. "During the interview, for the most part, he was able to maintain his concentration, but not during some of the Mini-Mental Status, again giving the reason as his pain intrusion." Id. Dr. Ritz diagnosed Plaintiff with major depressive disorder (single episode, mild), diabetes, back pain, stomach pain, and visual deficit. Id.
On April 17, 2014, Kevin King, Ph.D. ("Dr. King"), a non-examining consultant, completed a Psychiatric Review Technique Assessment ("PRT") and a Mental Residual Functional Capacity Assessment ("MRFC") on Plaintiff. Tr. at 91-92, 94-95. Dr. King opined Plaintiff had mild restrictions of activities of daily living ("ADLs"), mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, and pace. Tr. at 91. Dr. King opined Plaintiff was not significantly limited in his ability to sustain concentration and persistence; carry out very short and simple or detailed instructions; perform activities within a schedule, maintain regular attendance, and be punctual; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distract by them; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. Tr. at 94-95.
On April 24, 2014, Plaintiff met with Dr. Deal, indicating his pain level remained high and feeling something causing his pain was being missed. Tr. at 551. Dr. Deal started Plaintiff on a very low dose of Nortriptyline or Pamelor at bedtime to help with depression and pain control, as he remained impaired by chronic pain. Id.
On May 29, 2014, Plaintiff presented to Dr. Bergmann and reported his pain was worsening and he felt overwhelmed by daily issues, finances, and social security. Tr. at 544. Dr. Bergmann noted Plaintiff appeared in significant pain and frustrated with his status, but his response to interventions was good. Id.
On June 13, 2014, Derek O'Brien, M.D. ("Dr. O'Brien"), a non-examining consultant completed a PRT and a MRFC on Plaintiff. Tr. at 106-07, 110-12. For the PRT, Dr. O'Brien opined Plaintiff had mild restrictions of ADLs, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, and pace. Tr. at 106-07. Dr. O'Brien concluded "[t]he totality of the evidence indicates depression due to pain that would limit [Plaintiff] to simple work tasks." Id. For the MRFC, Dr. O'Brien's opinion was similar to Dr. King's, but he added Plaintiff was not significantly limited in his ability to set realistic goals or make plans independently of others. Tr. at 111. In addition, Dr. O'Brien opined Plaintiff was moderately limited in his ability to maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and respond appropriately to changes in the work setting. Id.
On June 17, 2014, Plaintiff saw Dr. Aldrich. Tr. at 620-22. Plaintiff reported his back pain had increased suddenly, and he wished to increase his Percocet. Tr. at 620. Plaintiff had difficulty standing and sitting, his gait was poor, and his affect was flat. Tr. at 621-22. Dr. Aldrich noted Plaintiff could only sit for fifteen minutes, could not lift over five pounds, had limitation of motion, worsening pain, and was disabled. Tr. at 622.
On June 19, 2014, Plaintiff saw Dr. Bergmann, who noted Plaintiff presented as very flat, used a cane for support, and described continued pain and physical limitations. Tr. at 623. Plaintiff expressed frustration with his life and legal issues that had not been settled. Id. Dr. Bergmann noted Plaintiff's response was "ok." Id.
On July 2, 2014, Plaintiff saw Dr. Aldrich to follow up on his chronic problems and for paper work to be filled out for his disability. Tr. at 616-19. Plaintiff reported he had been compliant in taking his Percocet, but the pain had been worse recently, causing difficulty driving, walking, or performing day-to-day activities and the medication made him tired. Tr. at 616.
On July 22, 2014, Plaintiff met with Dr. Bergmann and reported continuing pain that worsened with the weather and feeling helpless, but denied suicidal thoughts or plans. Tr. at 624-25. Dr. Bergman noted Plaintiff felt supported, "although there is little practical that we can do for him at this point." Id.
On July 29, 2014, Plaintiff saw Dr. Aldrich and reported he was in constant pain despite the prior increase in his Percocet. Tr. at 612-15. Regarding Plaintiff's lumbar spine pain, Dr. Aldrich noted "[n]othing else [could] be done." Tr. at 614.
On August 5, 2014, Plaintiff saw Dr. Bergmann and continued to complain about his pain, physical limitations, and financial issues. Tr. at 625. Plaintiff reported he had been terminated by his employer, and Dr. Bergmann noted the session was primarily ventilation. Id.
On August 19, 2014, Plaintiff presented to Dr. Aldrich and reported he had been in a car accident on August 10, 2014, causing pain in his neck, shoulders, and wrist. Tr. at 608-11.
On August 20, 2014, Plaintiff saw Dr. Bergmann, presenting as flat and passive, reporting debilitating pain, and expressing frustration with the system and with his legal issues. Tr. at 626.
On September 2, 2014, Plaintiff presented to Dr. Aldrich for pain in his neck, shoulders, and wrist due to the car accident. Tr. at 604-07. Dr. Aldrich assessed various issues, including lumbar spine and shoulder pain, and noted Plaintiff was taking Percocet. Tr. at 606.
On September 18, 2014, Plaintiff met with Dr. Bergmann and reported his pain was much worse on that particular day, which he attributed to the weather. Tr. at 626-27. Plaintiff remained frustrated with his legal and life situations. Tr. at 627. Dr. Bergmann noted it was obvious Plaintiff did not feel well, and he could not "really engage" that day. Id. Dr. Bergmann "[d]id not see how pushing him would help him [that day] and so after checking on his medication, ended the meeting." Id.
On October 13, 2014, Plaintiff saw Dr. Aldrich, who completed a Physical Capacities Evaluation Form. Tr. at 597-600. Dr. Aldrich indicated Plaintiff could not engage in climbing, bending, or stooping due to lumbar spine pain and these restrictions or limitations were considered permanent. Tr. at 567. Dr. Aldrich indicated Plaintiff was being treated with pain medication and his prognosis for returning to work was poor. Id. Dr. Aldrich opined Plaintiff could sit, stand, or walk for zero hours; could speak or view a computer screen for three hours; and was capable of working two hours per day of an eight-hour workday. Tr. at 568. Dr. Aldrich indicated Plaintiff could function frequently with his upper extremities for simple grasping, fine manipulation, and keyboarding, but never push or pull and rarely reach. Id. Plaintiff could also rarely lift from floor-to-waist, from waist-to-shoulder, or over his shoulder. Tr. at 569.
On October 14, 2014, Plaintiff met with Dr. Bergmann, who noted he presented as depressed and frustrated, and his pain remained a major stressor. Tr. at 627-28. Dr. Bergmann discussed Plaintiff's status and noted problem solving was not "really helpful at this point and session remains ventilation with support provided." Id. Plaintiff reported he was compliant with Dr. Deal's recommendations. Id. Dr. Bergmann noted there was "not much [Plaintiff] can really do at this point." Tr. at 628.
On November 12, 2014, Plaintiff saw Dr. Aldrich, complaining of back and right leg pain and abdominal pain with diarrhea. Tr. at 590-94. Dr. Aldrich increased Plaintiff's Percocet. Tr. at 593.
On November 19, 2014, Plaintiff met with Dr. Bergmann and reported continued pain and physical limitations and feeling frustrated, irritable, and depressed. Tr. at 628-29. Dr. Bergmann noted he worked to engage Plaintiff with little success and attempted to discuss the relationship between frustration, anger, and pain, "but had a hard time getting it to anywhere." Id.
On November 20, 2014, Plaintiff saw Dr. Aldrich for a follow-up visit with complaints of gastrointestinal issues. Tr. at 587-89. On December 11, 2014, Plaintiff presented to Dr. Aldrich, who assessed diabetes. Tr. at 586.
On January 7, 2015, Plaintiff met with Dr. Bergmann and reported no change in his physical status with pain as a major stressor. Tr. at 629-30. Dr. Bergmann noted Plaintiff was depressed and he was not very resilient at this point. Tr. at 629.
On January 9, 2015, Plaintiff saw Dr. Aldrich for complaints of worsening abdominal, shoulder, and lower back pain. Tr. at 582-85.
On January 14, 2015, Plaintiff was evaluated at Carolina Spine Center upon request by a workers' compensation carrier for a neurosurgical consultation. Tr. at 570-71. Steven B. Storick, M.D. ("Dr. Storick"), evaluated Plaintiff, who reported worsening back pain. Id. Dr. Storick noted Plaintiff's pain intensified when he moved around, he used a cane for support, and his gait was slow and guarded, favoring his right leg. Tr. at 570-71. Dr. Storick also noted Plaintiff was diffusely tender along the lumbosacral juncture and his sensation to light touch was decreased along the right leg. Tr. at 571. Dr. Storick noted Plaintiff's situation had not changed to any degree since his prior evaluation, except his complaints were more intense, and he characterized his progress as poor. Id. Dr. Storick opined Plaintiff would not improve with any treatments, whether aggressive or conservative. Id. Dr. Storick recommended a full pain program, which he stated Plaintiff had previously declined. Id. Dr. Storick stated "[c]ontinuing with any type of opioids is not in his best interest and carries significant risks." Id. Dr. Storick stated Plaintiff was worse off due to his medications and expressed a belief there was a significant psychological component to his chronic disability and pain. Id.
In his evaluation, Dr. Storick states, "[Plaintiff] had previously been seen by me for an IME at Palmetto Health Pain Management and Rehabilitation Center." Tr. at 570. However, the undersigned did not locate this prior evaluation in the record, nor is it discussed by the ALJ in her decision.
On January 27, 2015, Plaintiff saw Dr. Bergmann and reported continued pain, continued depressed mood, withdrawal, and hopelessness. Tr. at 630-31. Dr. Bergmann noted Plaintiff was disappointed with a recent re-evaluation where he was told that no changes in medications or treatment were possible at this point. Tr. at 630.
On February 26, 2015, Plaintiff saw Dr. Bergmann, who noted Plaintiff was disappointed with some aspects of his recent independent medical evaluation, and he continued to report disabling pain with accompanying physical limitations. Tr. at 631. Dr. Bergmann noted Plaintiff was very discouraged and depressed. Id. Dr. Bergmann also noted the evaluation indicated a poor prognosis with little improvement. Id. Dr. Bergmann indicated he agreed with much of what was in the evaluation, and he suggested to Plaintiff that he would need to try something new or make a radical change for a chance at improvement. Id. Dr. Bergmann encouraged an evaluation at the pain clinic in Charlotte and noted Plaintiff's response was good. Id.
On March 9, 2015, Plaintiff was evaluated as a candidate for the Functional Restoration Program at the The Rehab Center. Tr. at 656, 668-77. During his initial evaluation, Plaintiff indicated his goals for treatment would be to eliminate his pain, clarify his future, and improve his function. Tr. at 669. It was determined Plaintiff was an appropriate candidate for the program. Id.
On March 10, 2015, Plaintiff saw Dr. Aldrich for a follow-up appointment and a refill of Percocet. Tr. at 579-81. Plaintiff admitted low back pain, weakness, and depression. Tr. at 580.
On March 17, 2015, Plaintiff saw Dr. Bergmann. Tr. at 631-32. Plaintiff reported continued pain and discouragement with his status, but indicated he would be entering a comprehensive pain program. Tr. at 632. Dr. Bergmann noted Plaintiff would return after completion of the program. Id.
Plaintiff began the Functional Restoration Program on March 23, 2015. Tr. at 656-87. According to his discharge report, Plaintiff maintained perfect attendance throughout the course of treatment, and he was discharged on April 17, 2015, after completing the program. Tr. at 656-59. During the program, Plaintiff indicated he did not feel he was capable of returning to suitable, gainful employment due to his pain and physical limitations. Id. The discharge summary further indicated Plaintiff put forth a "fairly good effort" during the Comprehensive Pain Management and Rehabilitation Program that resulted in a decrease in his pain behavior and demonstrably better body mechanics. Id. Plaintiff was encouraged to wean off Percocet, which he was able to do to some extent by the time of discharge. Tr. at 657. The discharge summary indicated Plaintiff made improvements in some of his functional skills through physical therapy. Id. Although Plaintiff presented with severe levels of depression and anxiety, he was encouraged to make an active effort to re-engage in his life and he was exposed to several cognitive and behavioral strategies to improve his psychological status. Tr. at 658.
Plaintiff was given an impairment rating of twenty-three percent of a whole person. Tr. at 660. He was also given the following Return to Work Guidelines by T. Kern Carlton, M.D. ("Dr. Carlton"), of The Rehab Center: lifting (floor to waist) ten pounds occasionally and seven pounds frequently; lifting (knee to waist) fourteen pounds occasionally and nine pounds frequently; lifting (waist to shoulder) thirteen pounds occasionally and nine pounds frequently; lifting (level) seventeen pounds occasionally and thirteen pounds frequently; one-hand carrying ten pounds occasionally and eight pounds frequently; and two-hand carrying twelve pounds occasionally and ten pounds frequently. Id.
The following abilities were noted in Plaintiff's Functional Status Report: ability to tolerate an eight-hour day; ability to rotate neck within functional limits; ability to perform manipulation of objects using both hands; sitting for sixty minutes at a time with occasional weight shifting; standing in one place for thirteen minutes with occasional weight shifting; dynamic standing for thirty minutes; and able to walk on level surface for twenty minutes without assistive device. Tr. at 663-64. The Psychology Discharge Summary stated Plaintiff "made minimal progress" in pain behavior, pain avoidance in the perpetuation of pain, dysfunction, and overall distress. Tr. at 665. It noted Plaintiff continued to "perceive his capacity to resume previous family, recreational, or vocational activities as severely limited due to his pain." Id. The Vocational Summary relayed Plaintiff "has not been open to considering vocational options due to receiving Long-Term Disability (LTD) benefits. Since the beginning of the program [he] has communicated that he did not wish to return to work. He reports that his pain levels are so significant that he needs to take days one at a time." Tr. at 666.
On April 29, 2015, Plaintiff saw Dr. Aldrich. Tr. at 576-78. Dr. Aldrich assessed diabetes, diarrhea, erectile disfunction, hypertension, and chronic lumbosacral pain. Tr. at 578. Dr. Aldrich filled out a Physical Capacities Evaluation Form in which he indicated Plaintiff could work, sit, stand, and walk for one hour; could speak for three hours; and view a computer screen for two hours per eight-hour workday. Tr. at 690. As to his upper extremity functioning, Plaintiff could frequently do simple grasping, fine manipulation, and keyboarding; however, he could never push, pull, reach, or lift. Tr. at 690-91.
On May 5, 2015, Dr. Bergmann indicated Plaintiff was "psychologically unable to work, very depressed, [had] chronic pain, impaired memory and concentration." Tr. at 692. Dr. Bergmann also indicated Plaintiff's issues impacted his cognitive and physical functioning. Id. Dr. Bergmann noted Plaintiff was attending psychotherapy and taking medication. Id. Dr. Bergmann also provided a Mental Health Treatment Provider Statement and noted Plaintiff's mood was worrisome, sad, constricted, and flat, but his judgment was intact. Tr. at 693. Dr. Bergmann indicated Plaintiff's current cognitive functioning was impaired due to "focus on pain," and he would be unable to work due to his depression and pain, as he is unable to focus, be safe, or communicate and interact appropriately. Id. He indicated Plaintiff had a pain disorder and major depressive disorder. Id.
On May 6, 2015, Plaintiff saw Dr. Bergmann, who noted Plaintiff reported his experience at the pain clinic was difficult and it was hard to be away from home for a month. Tr. at 632-33. Plaintiff's pain had increased and he continued to present as flat, depressed, and struggling with disability. Tr. at 632-33. Dr. Bergmann noted he discussed Plaintiff's perception of the help he received, attempted to reframe the experience, and his response was good. Tr. at 633.
On June 3, 2015, Plaintiff saw Dr. Bergmann and reported he continued to be disabled by pain or frustrated by lack of care and improvement. Tr. at 633-34. Plaintiff indicated he was seeing another medical provider and was hopeful for some recommendations to get relief. Tr. at 633. Dr. Bergmann encouraged him to be as active as possible. Id.
On June 24, 2015, Plaintiff saw Dr. Aldrich and complained of back pain, stomach problems, and depression. Tr. at 572-75. Dr. Aldrich assessed chronic abdominal pain, depression, diabetes, diarrhea, erectile disfunction, hypertension, and chronic pain. Tr. at 574. Dr. Aldrich prescribed Cymbalta for depression. Id.
On July 2, 2015, Plaintiff saw Dr. Bergmann, who noted Plaintiff had significant mobility issues. Tr. at 634. Plaintiff presented as flat and depressed. Id. Plaintiff reported his status was unchanged, he was frustrated with his psychological and physical statuses, he feared his future, and he struggled to look ahead. Id.
On August 27, 2015, Plaintiff saw Dr. Bergmann and reported "a very bad pain day." Tr. at 703-04. Dr. Bergmann noted Plaintiff fidgeted and found it difficult to focus during their session. Id. Dr. Bergmann also noted "use of medication is only somewhat helpful and he will see Dr. Salas today." Id.
This appears to be the only reference in the record to Dr. Salas.
On September 21, 2015, Plaintiff saw Dr. Aldrich with complaints of low back pain that extended down to both legs and stomach issues. Tr. at 720-23. Dr. Aldrich noted Plaintiff's affect was flat and continued Plaintiff on Percocet. Tr. at 722.
On September 24, 2015, Plaintiff saw Dr. Bergmann, noting increased pain with the weather change and depression. Tr. at 702. Dr. Bergmann emphasized the importance of making current plans and believed Plaintiff was beginning to have more concrete thoughts about the process. Id.
On October 22, 2015, Plaintiff saw Dr. Bergmann and reported he continued to struggle with pain that was not well controlled, as well as disappointment with his life. Tr. at 701.
On November 12, 2015, Dr. Aldrich saw Plaintiff, who had a slow gait. Tr. at 714-19. Dr. Aldrich assessed depression, diabetes, chronic diarrhea, hypertension, low back pain, chronic pain, low libido, and disequilibrium. Tr. at 718.
On December 7, 2015, Plaintiff had no new complaints when he met with Dr. Bergmann. Tr. at 699. Dr. Bergmann "cautioned him that if he looked hard enough, he would find someone who would treat him further" despite the opinions he had received, stating "he does not have any surgical options." Id. Dr. Bergmann was concerned about Plaintiff's perception of his physical symptoms. Id.
On January 7, 2016, Plaintiff reported to Dr. Bergmann his pain was really bothering him due to the weather. Tr. at 698. Plaintiff remained very depressed and discouraged. Id. Dr. Bergmann discussed Plaintiff's future plans for managing his life and pain. Id.
On February 2, 2016, Plaintiff saw Dr. Bergmann and reported feeling discouraged with the workers' compensation process and concerned with his physical status, but he continued to believe he would or could improve. Tr. at 696. Dr. Bergmann noted Plaintiff wanted a second opinion, and he discussed with him the importance of making good and scientific decisions. Id.
On February 12, 2016, Plaintiff saw Dr. Aldrich to follow up on his chronic back pain. Tr. at 710-13. Plaintiff exhibited flat affect. Tr. at 712.
On March 15, 2016, Plaintiff saw Dr. Bergmann, who noted Plaintiff had settled his legal issues and expressed relief and disappointment, along with concern about his future. Tr. at 695. Plaintiff reported he was without medications and noticed his condition worsening. Id. Dr. Bergmann directed him to his primary care doctor. Id.
On May 4, 2016, Plaintiff saw Dr. Bergmann, who noted Plaintiff remained flat, depressed, and passive. Tr. at 694. Dr. Bergmann also noted Plaintiff reported continued pain and physical limitations. Id. Having settled his legal issues, Plaintiff remained very discouraged. Id. Dr. Bergmann discussed Plaintiff's return to treatment and he pushed him to begin to make specific plans to be more active and involved. Id.
On May 12, 2016, Plaintiff saw Dr. Aldrich for a follow-up appointment regarding pain in his back and shoulders. Tr. at 705-08. Plaintiff showed flat affect. Tr. at 706.
On September 19, 2016, Dr. Aldrich completed a Physical Capacities Evaluation Form, reflecting Plaintiff could sit for two hours, stand and walk for one hour, speak for four hours, and view a computer screen for five hours. Tr. at 7-10. He opined Plaintiff would need a break every two hours; could function frequently with his upper extremities for simple grasping, fine manipulation, and keyboarding; could rarely push, pull, or reach; and never lift or carry more than five pounds. Tr. at 9-10. He indicated Plaintiff's restrictions were permanent. Tr. at 5, 10.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on July 20, 2016, Plaintiff testified he was 45 years old, 5 feet 6 inches, 200 pounds, and had graduated high school. Tr. at 41, 46-47. He stated he was single with no children, but he lived with his girlfriend. Tr. at 47. He testified he was employed from 1998 until November 2012 at Eaton Corporation, building and inspecting panel boards. Tr. at 47-50. He said he typically would lift 50 to 125 pounds as a builder and 100 to 125 pounds as an inspector. Tr. at 49, 51.
Plaintiff testified he had a work-related accident at Eaton Corporation on October 25, 2012, where he ruptured a disc in his lower back while moving an 800 to 1,000-pound board. Tr. at 51-52. He stated he had fusion surgery for his low back. Tr. at 52. He stated Dr. Bergmann was treating him for depression, anxiety, and stress, Tr. at 52-54, and Dr. Aldridge was treating him for his low back pain, gout in his right knee and fingers, depression, and pain in his legs. Tr. at 53. Plaintiff stated he discovered he was diabetic prior to having surgery, and he has since been administering injections. Tr. at 54-55, 58. He testified that, during his pre-surgery treatment, he was prescribed a TENS unit, which he still used on his lower back area for an hour or so to calm his flare ups before going to sleep. Tr. at 55, 57-58. He testified he was also prescribed a cane for use before and after his surgery. Tr. at 55-56. He testified he never tapered or stopped using the cane outside his home, but he tried not to use it in the house and used his back brace from "time-to-time." Tr. 56-57. Plaintiff stated he took 10-325 milligram Percocet pills four times a day to take "the edge off" his pain, tr. at 59, and took Trazodone, Duloxetine, Nortriptyline, and Cyclobenzaprine, tr. at 59-60. Plaintiff testified he experienced virtually constant sciatica pain, mostly down his right leg. Tr. at 60. He said he tried neuropathic pain medicines like Gabapentin, Neurontin, and Lyrica, but they were ineffective. Tr. at 60-61.
Plaintiff testified his depression manifested itself by causing anxiety to build up, crying, and voluntary isolation "about every other day." Tr. at 61. He stated his girlfriend checked on him by phone or stopped by the house while she worked. Tr. at 61-62. Plaintiff said his hypertension was well controlled with medicine. Tr. at 62. He stated he used to see Dr. Bergmann twice a month, but reduced to once a month. Id.
Plaintiff testified he experienced pain and discomfort in his lower back and legs while sitting or standing more than ten or fifteen minutes. Tr. at 63. He stated being able to walk about fifty yards with his cane before having to stop for a five-minute rest. Tr. at 63-64. Plaintiff testified the heaviest object he lifted during a day was a gallon of milk with two hands, but he felt it in his low back. Tr. at 64. He testified he got up around 5:00 a.m. and went to bed around midnight. Tr. at 64-65. He said he spent approximately three hours lying down or reclining, but would change positions throughout the day. Tr. at 65. He stated he elevated his legs to keep his blood flowing, alleviate pain, and reduce swelling. Tr. at 65. He testified he had gout problems for over two years in both hands, such that he could not bend his fingers to make a fist. Tr. at 66-67. He stated his gout issues occurred three times a month and sometimes lasted for weeks. Tr. at 66. Plaintiff stated his gout problems made it difficult to hold onto and lift things. Tr. at 67. He described the gout in his knee as mainly occurring on the right, causing popping and difficulty bending. Id. Plaintiff testified that, a couple of years prior, he had to see a specialist to drain the fluid off his knee. Tr. at 67-68. He said he had issues with concentration, focus, and memory due to pain and side effects from his medication. Tr. at 68.
Plaintiff testified a typical day for him consisted of waking up around 5:00 a.m., eating a breakfast his girlfriend made for him, and watching television until he went to bed at midnight. Tr. at 68. He said he was very limited in his activities, did not do household chores, and that his girlfriend and sister did the housekeeping and cooking. Id. He said he received assistance with his personal needs, such as bathing or dressing. Tr. at 69. He said he had difficulty getting up from a seated or reclined position and sleeping, but he took Trazodone for insomnia and slept for two hours at a time at night and during the day. Tr. at 69-70. Plaintiff stated he had a driver's license, but drove very little, only ten miles to a corner store, drug store, or his parents' house a couple of days a week. Tr. at 70-72. He stated his sister usually drove him to his medical appointments and he had not driven to his appointments for two years. Tr. at 72-73. He said he attended church at least once a month for a one-hour service, but usually sat in the back so he could get up to relieve his back, walk around, and use the bathroom. Tr. at 73. He testified he developed celiac disease and typically went to the bathroom five times a day. Tr. at 73-74. He denied belonging to any social clubs. Tr. at 75.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Kathryn Mooney reviewed the record and testified at the hearing. Tr. at 75-84. The VE categorized Plaintiff's PRW as a panel assembler and wirer as medium, skilled, with a Specific Vocational Preparation ("SVP") of 6, DOT number 826.361-010. Tr. at 75-76. The ALJ described a hypothetical individual of Plaintiff's age, education, and vocational profile who could perform light work with additional limitations, such as only occasional stooping, pushing, pulling, kneeling, crawling, crouching, and climbing, but only climbing ramps and stairs; lifting only ten pounds from the floor level, but otherwise lifting twenty pounds from waist level; avoiding hazards such as heights and moving machinery; and avoiding extremely cold temperatures. Tr. at 76. In addition, the person could understand, remember, and perform simple and detailed tasks. Tr. at 77. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 76-77. The ALJ asked whether there were any other jobs in the national economy the hypothetical person could perform. Tr. at 77. The VE identified a parking lot cashier, light, with SVP of 2, unskilled, DOT number 211.462-010, with 42,500 jobs available in the national economy; a small parts assembler, light with SVP of 2, DOT number 706.684-022, with 55,000 jobs available in the national economy; and a poly-packer and heat-sealer, light with SVP of 2, DOT number 920.686-038, with 170,000 jobs available in the national economy. Tr. at 77-78.
Although the hearing transcript spells the VE's first name as "Katherine," the hearing decision and VE's resume reflect her first name as "Kathryn." Compare Tr. at 16, with Tr. at 75, 341.
The VE acknowledged the work described by Plaintiff was "much heavier." Tr. at 76.
The ALJ described a second hypothetical individual of Plaintiff's profile who was further limited by needing the option to sit at least every forty-five minutes for one to two minutes to alleviate discomfort, but could continue working while seated. Tr. at 78. The VE testified the person could perform the previously listed jobs, with no reduction in job numbers. Id.
The ALJ described a third hypothetical individual of Plaintiff's profile who was further limited in just occasional interaction with the general public, and the VE testified the position as a parking lot cashier would be eliminated, but the other jobs would remain viable options. Tr. at 78-79.
The ALJ described a fourth hypothetical individual of Plaintiff's profile who was limited to work at the sedentary level, but would need an option to stand at least every forty-five minutes for about a minute to alleviate discomfort, continuing to work while seated. Tr. at 79. The VE testified he could perform the jobs of semi-conductor bonder, sedentary with SVP of 2, DOT number 726.685-066, with 57,230 positions available in the national economy; nut sorter, sedentary with SVP of 2, DOT number 521.687-086, with 15,300 positions available in the national economy; and dowel inspector, sedentary with an SVP of 2, DOT number 669.687-014, with over 15,000 positions available in the national economy. Tr. at 79-80.
In response to the ALJ, the VE testified, if the person were off task for fifteen percent of the work day in addition to ordinary breaks, those jobs would not be possible, but other jobs would be available. Tr. at 80. The VE also testified, if the person were absent two days per month, no jobs would be available. Tr. at 81. The VE explained the DOT does not specifically address sit or stand options, off-task time, and absenteeism, so she based her responses including those limitations on her research, training, and experience. Tr. at 81.
In response to questions by Plaintiff's counsel, the VE testified, if the person required the option to lie down for one hour at unscheduled times during the work day in addition to ordinary breaks, then he would be unable to perform any job. Tr. at 81-82. Next, Plaintiff's counsel referred to the "no lifting" restriction in Dr. Aldrich's April 2015 opinion, and the VE testified, if the person were restricted to no lifting, there would be jobs available, but the VE could not name them without conducting research. Tr. at 82-83. Next, Plaintiff's counsel referred to Dr. Aldrich's restriction of no pushing, pulling, or reaching, and the VE testified a person limited to sedentary work would usually be required to reach out in front of the body to handle objects from a seated position, but would not be required to push or pull. Tr. at 83. Finally, Plaintiff's counsel inquired whether all work would be eliminated if the hypothetical person were limited to working only one hour per day, and the VE testified it would eliminate all competitive work. Tr. at 84.
2. The ALJ's Findings
In his decision, dated September 8, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2019.
2. The claimant has not engaged in substantial gainful activity since November 15, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: lumbosacral radiculitis; status-post transforaminal lumbar interbody fusion at L4-5 with chronic postoperative pain syndrome; type II diabetes mellitus; knee arthritis; neuropathy; obesity; major depressive disorder; and pain disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b). Specifically, the claimant can lift only 10 pounds from floor-level but otherwise can lift up to 20 pounds from waist-level; needs the option to sit every 45 minutes for one to two minutes at a time but can continue working while seated; occasionally can stoop,
push, pull, kneel, crawl, crouch, and climb ramps and stairs; never can climb ladders, ropes, or scaffolds; should avoid hazards such as heights and moving machinery; should avoid extreme cold temperatures such as refrigerated environments; and can understand, remember, and perform simple and detailed tasks.Tr. at 18-33. II. Discussion
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on November 26, 1970, and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from November 15, 2012, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not properly assess the medical source opinion evidence, as she failed to fully evaluate the opinions of Dr. Deal, Dr. Bergmann, and Dr. Aldrich; and
2) the ALJ did not properly explain her findings regarding his RFC, as she failed to account for his mental limitations and cane usage.
The Commissioner counters substantial evidence supports the ALJ's findings and she committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) defines disability as:
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 12 months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at any step, Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, she may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo, or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Opinion Evidence
Plaintiff points to the opinions offered by Dr. Deal, Dr. Bergmann, and Dr. Aldrich, arguing the ALJ failed to consider the relevant factors dictated by 20 C.F.R. § 404.1527. [ECF No. 19 at 23-32]. The Commissioner argues substantial evidence supports the ALJ's weighing of these opinions, and the ALJ adequately considered why the opinions were not entitled to controlling weight. [ECF No. 21 at 7-9].
The applicable regulations direct ALJs to accord controlling weight to treating physicians' opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). "[T]reating physicians are given 'more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'" Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
Effective March 27, 2017, the Social Security Administration rescinded SSR 96-2p, and it no longer applies the "treating physician rule." Rescission of SSR 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (March 27, 2017); 20 C.F.R. § 404.1520c (2017). The undersigned will review the ALJ's decision under the old rules codified by 20 C.F.R. § 404.1527 because the new regulation is not retroactive and Plaintiff filed his claim before it took effect. See 82 Fed. Reg. 15,263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017"); see also 20 C.F.R. § 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply").
If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's evaluation of the treating source's opinion does not end with the determination that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c), which include "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527).
ALJs are not required to expressly discuss each factor set forth in 20 C.F.R. § 404.1527(c), but their decisions should demonstrate they considered and applied all the factors and accorded each opinion appropriate weight in light of the evidence of record. See Lollis v. Berryhill, No. 9:16-CV-2566-DCN, 2017 WL 4157141, at *2 (D.S.C. Sept. 18, 2017) (stating the "Fourth Circuit has not mandated that the ALJ expressly discuss each factor, and another court in this district has held that 'an express discussion of each factor is not required as long as the ALJ demonstrates that he applied the . . . factors and provides good reasons for his decision.'" (quoting Hendrix v. Astrue, No. 1:09-01283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010)).
If the ALJ issues a decision that is not fully favorable, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2). However, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). This court should not disturb an ALJ's determination as to the weight assigned "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).
In view of the foregoing authority, the undersigned considers Plaintiff's specific allegations of error.
a. Opinions of Dr. Deal and Dr. Bergmann
On April 9, 2014, Dr. Deal opined Plaintiff's mental diagnosis was "309.28 Adjustment Disorder mixed with anxiety/depression [and] chronic pain." Tr at. 535. Dr. Deal stated Plaintiff had been prescribed Valium for his mental condition, which had helped, and psychiatric care had been recommended. Id. Dr. Deal noted Plaintiff was oriented to time, person, place and situation and his thought content was appropriate, but his thought process was slowed and distractible, his mood or affect was depressed, his attention or concentration was poor, and his memory was poor. Id. Dr. Deal opined Plaintiff had exhibited obvious work-related limitations in function due to his mental condition, as "[f]ocus is difficult due to pain." Id. Finally, Dr. Deal noted Plaintiff was capable of managing his funds. Id.
On May 5, 2015, Dr. Bergmann noted Plaintiff was "psychologically unable to work, very depressed, [had] chronic pain, impaired memory and concentration." Tr. at 692. Dr. Bergmann also indicated Plaintiff's issues impacted his cognitive and physical functioning, but he was attending psychotherapy and taking medication. Id. In addition, Dr. Bergmann provided a Mental Health Treatment Provider Statement and noted Plaintiff's mood was worrisome, sad, constricted, and flat; his motor activity was retarded; and his thought processes were circumstantial. Tr. at 693. He noted Plaintiff did not hallucinate or have delusions, and he was easily oriented, non-suicidal, and non-homicidal with intact judgment. Id. Dr. Bergmann indicated Plaintiff's current cognitive functioning was impaired due to "focus on pain," and he would be unable to work due to his depression and pain, as he was unable to focus, be safe, or communicate and interact appropriately. Id. He indicated Plaintiff had a pain disorder and major depressive disorder. Id.
The undersigned notes Dr. Bergmann also provided an evaluation from Plaintiff's initial appointment on August 27, 2013, listing diagnoses of major depressive disorder (single episode, moderate, principal), pain disorder associated with psychological factors and medical condition, and chronic pain with a GAF score of 45. Tr. at 553-54. Dr. Bergmann noted Plaintiff's attention and concentration were characterized by distractibility. Id. Dr. Bergmann also noted Plaintiff's psychological issues had developed following his work injury and he required mental health treatment, including psychotherapy and medication prescribed by a psychiatrist. Id.
Plaintiff argues the ALJ failed to explain why the opinions of Dr. Deal and Dr. Bergmann are not worthy of significant weight given the factors that should be considered according to 20 C.F.R. § 404.1527. [ECF No. 19 at 26-28]. In addition, Plaintiff argues the ALJ erred in discounting his subjective reports to mental health professionals and failed to discuss the observed behaviors that supported them and the opinion evidence. Id.
The Commissioner argues the ALJ properly afforded little weight to these opinions because "the evidence does not include[] objective findings or mental status evaluation abnormalities that support disabling limitations," the treatment notes routinely show "normal thought processes and intact judgment and insight," an independent consultative examiner found only a mild impairment, and the doctors' opinions were inconsistent with the substantial evidence of record. [ECF No. 21 at 8-9].
The ALJ stated she gave little weight to the opinions of Dr. Deal and Dr. Bergmann. Tr. at 29. The ALJ provided the following discussion regarding these opinions:
On April 9, 2014, Dr. Deal, [Plaintiff's] psychiatrist, indicated the claimant had obvious work-related limitation due to his mental condition, noting that focus was difficult due to pain (Exhibit 9F at 2). The psychiatrist said the claimant was fully oriented with slowed and distractible thought process, appropriate thought content, a depressed mood/affect, poor attention/concentration, and poor memory (Id.). Later, [i]n May 2015, Dr. Bergmann, [Plaintiff's] psychologist, indicated [Plaintiff] was psychologically unable to work due to being very depressed with chronic pain and impaired memory and concentration (Exhibit 20F at 1). The doctor said [Plaintiff] had retarded motor activity, a worrisome, sad, constricted, and flat mood, and circumstantial thought processes, but he also noted good grooming, no hallucinations or
delusions, full orientation, intact judgment, and no suicidal or homicidal ideation (Exhibit 20F at 2). He said [Plaintiff] could not focus, be safe, communicate, or interact appropriately (Id.).Tr. at 29. However, the ALJ gave these opinions little weight, stating,
To start, they are vague and do not offer specific functional limitations in vocationally relevant terms. In addition, the doctors' examination notes record [Plaintiff's] subjective complaints but frequently do not contain objective findings or mental status examination abnormalities that might support significant mental limitations. Moreover, the treatment notes routinely show a flat affect but also normal thought processes and intact judgment and insight. Independent consultative examiner Dr. Ritz found only mild impairment after his evaluation of [Plaintiff]. The undersigned finds Dr. Deal's and Dr. Bergmann's opinions inconsistent with the substantial evidence of record and gives them little weight.Id.
The ALJ discussed the GAF score assigned by Dr. Bergmann separately from her discussion of Dr. Bergmann and Dr. Deal, assigning it little weight because it represents a particular clinician's subjective evaluation at a single point in time and "is not designed for adjudicative determinations." Tr. at 32. The ALJ acknowledged that the GAF score assigned—45—was "generally indicative of serious overall impairment"; however, she stated it was "impossible" to "determine what type or types of limitations" were contemplated. Id.
Because Dr. Bergmann and Dr. Deal were Plaintiff's treating physicians, their opinions were presumptively entitled to controlling weight. See 20 C.F.R. § 404.1527(c) and SSR 96-2p. In its review, the undersigned focuses on whether the ALJ's opinion is supported by substantial evidence or there was legal error, because its role is not to "undertake to re-weigh conflicting evidence, make credibility determinations or substitute [its] judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). Nevertheless, the undersigned recommends the court find the ALJ did not adequately consider these opinions in accordance with the provisions of 20 C.F.R. § 404.1527(c) and SSR 96-2p for several reasons.
In her decision, the ALJ noted Dr. Bergmann was Plaintiff's psychologist and Dr. Deal was Plaintiff's psychiatrist. Tr. at 23-24, 29. Earlier in her decision, the ALJ noted Plaintiff began treatment with Dr. Bergmann on August 27, 2013, and he was diagnosed with major depressive disorder (single episode, moderate) and "pain disorder associated with psychological factors and medical condition" with a GAF "score of 45, indicating serious symptoms or any serious impairment in social, occupational, or school functioning." Tr. at 24. However, the ALJ did not state when Plaintiff began treatment with Dr. Deal. Yet, the record makes clear it was no later than September 2013. See Tr. at 560 (providing a progress note by Dr. Deal dated September 4, 2013).
Moreover, the ALJ only devoted three sentences in her decision to acknowledge Plaintiff's regular visits with both doctors. Tr. at 24 (citing records in Exhibits 11F, 15F, and 21F). In particular, the ALJ stated,
[Plaintiff] regularly followed up with Dr. Bergmann and psychiatrist [Dr. Deal]. The doctors noted pain behavior with complaints of depression, anxiety, and frustration. [Plaintiff] did admit, however, that medication helped his symptoms, and at times Dr. Bergmann noted good response to intervention.Tr. at 24 (internal citations omitted).
The applicable regulations provide, even if the treating source's medical opinion is not given controlling weight, the factors listed in 20 C.F.R. § 404.1527(c) will be considered in determining the weight to give the medical opinion. "Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion," as he has developed a "longitudinal picture" of the impairment. 20 C.F.R. § 404.1527(c)(2)(i).
The ALJ provided a few reasons to support her decision to accord little weight to the opinions of Dr. Bergmann and Dr. Deal, but she ignored the primary basis of the opinions and did not adequately consider supporting evidence in their treatment notes. Although the ALJ acknowledged a treatment relationship existed between Dr. Bergmann and Dr. Deal (Tr. at 29), her decision does not reflect consideration of the frequency and length of the treatment relationship required by 20 C.F.R. § 404.1527(c)(2). As pointed out by Plaintiff in his brief, the ALJ failed to show consideration of Plaintiff having presented to Dr. Bergmann and Dr. Deal over thirty times throughout almost three years of treatment. In fact, Plaintiff testified at the hearing that he was still being treated by Dr. Bergmann. Tr. at 52-54.
Dr. Deal had passed away at the time of the hearing. Tr. at 59.
In addition, the ALJ concluded Dr. Bergmann and Dr. Deal's opinions were inconsistent with or not supported by the record. See Tr. at 29; see also 20 C.F.R. § 404.1527(c)(3), (4). However, it does not appear she considered the entire record in evaluating the consistency of their opinions regarding Plaintiff's alleged improvement because she ignored documentation of Plaintiff's continuous complaints of pain and depression.
A review of the treatment notes reveals the severity of Plaintiff's symptoms exhibited during his sessions with Dr. Bergmann and Dr. Deal. See, e.g., Tr. at 542 (reporting Plaintiff cried hard during his appointment and he was so upset that the session had to be stopped a few times); 555 (observing Plaintiff used a cane, shifted consistently in his chair, and reported continued pain and physical limitations with a depressed mood), 556 (noting Plaintiff was feeling overwhelmed, depressed, anxious, and appeared in pain); 558 (noting Plaintiff was bent over in apparent pain several times and wincing when walking); 559 (noting Plaintiff was in a lot of pain, hunched over, and his pain was poorly controlled, resulting in Plaintiff feeling depressed and frustrated); 626 (observing Plaintiff presented as flat and passive, he reported debilitating pain, and he expressed frustration); 627 (noting it was obvious Plaintiff did not feel well, and he "could not really engage" that day so the session was terminated early); 628 (noting Plaintiff presented as depressed and frustrated, and his pain remained a major stressor); 629 (noting Plaintiff was depressed and he was not very resilient at that point); and 632-33 (stating Plaintiff's pain had increased and he continued to present as flat, depressed, and struggling with disability).
Furthermore, the ALJ noted Plaintiff admitted some improvement with treatment and medication (Tr. at 27); however, the treating physicians—Dr. Deal and Dr. Bergmann—never opined Plaintiff had improved such that he could work again. In Kellough v. Heckler, the United States Court of Appeal for the Fourth Circuit ("Fourth Circuit") noted reference in the record to "feels well" must be read in context and was not a substantial basis for rejecting as incredible the claimant's subjective complaints of exertional limitation." 785 F.2d 1147, 1153 (4th Cir. 1986); see Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2011) ("Dr. Oh's statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace." (citing Kellough, 785 F.2d at 1153)).
Likewise, here, the record contains no explanation for the meaning of Plaintiff's improvement and warrants remand because the ALJ failed to consider the notations in light of their context and surrounding records, including Dr. Bergmann's subsequent opinion stating Plaintiff was still unable to work. See, e.g, Tr. at 545 (noting Plaintiff "kept the [T]razadone at the 200 mg as he feels the improved quality of sleep is worth it even though he is not able to stay asleep for long due to pain" and there was "[s]ome reduction in anxiety but remains easily agitated and is frustrated by the pain"); 548 (noting Plaintiff's response to interventions as "[i]mproving in anxiety control," but "[p]ain remains a major issue for him"); 550 (stating Plaintiff finds taking Valium at bedtime "is helpful although the pain continues to wake him from his sleep"); 551 (noting Plaintiff's pain levels remained high and the doctor discussed "adding an older antidepressant to see if this will help him with reducing pain and depression"); 562 (noting Plaintiff had "modest sleep improvement," but adjusting medications); 563 (noting Plaintiff "has done quite well on the Trazodone," but "[u]nfortunately he has had a marked increase in pain levels," "currently has nothing to take for pain control," and "is extremely uncomfortable"); 564 (stating Plaintiff "has not been able to hold down the medicines well due to upset stomach"); 565-66 (adjusting medications); and 703 (stating "use of medication is only somewhat helpful"). Thus, the ALJ did not provide an adequate explanation for her decision not to accord greater weight to the treating physicians' opinions.
The ALJ also pointed to a number of normal findings, but findings of intact judgment and insight with normal thought processes do not refute that functional limitations associated with chronic postoperative pain syndrome, major depressive disorder, and pain disorder—all found to be severe impairments by the ALJ—would significantly limit Plaintiff's ability to complete tasks in a work environment. Tr. at 18.
The ALJ also ignored consistency between the opinions of Dr. Bergmann and Dr. Deal with other treating or examining sources, all of whom recognized Plaintiff's psychological issues. See, e.g., Tr. at 554 (Dr. Bergmann listed diagnoses of major depressive disorder (single episode, moderate, principal), pain disorder associated with psychological factors and medical condition, and chronic pain with a GAF score of 45); 692-93 (Dr. Bergmann indicated Plaintiff was "psychologically unable to work, very depressed, [had] chronic pain, impaired memory and concentration"); 535 (Dr. Deal indicated Plaintiff was diagnosed with adjustment disorder with anxiety, depression, and chronic pain); 501, 503-05 (Dr. Aldrich indicated Plaintiff needed pain management for his lumbar spine pain and assessed lumbar spine pain and chronic back pain); 650-655 (Dr. Warrick stated "I am concerned for underlying psychological issues such as mood disorder" and Plaintiff's "functional benefit has more to do with improvement in mood and his perceived debilitation than organic pain relief"); 472 (Dr. Gunter recommended Plaintiff seek psychiatry or behavioral consultation assistance for management of his depressed mood and remain off work until he could achieve better pain control); 571 (Dr. Storick opined Plaintiff was worse off due to his medications and expressed a belief there was a significant psychological component to his chronic disability and pain).
With regard to these statements, the ALJ assigned little weight to the portion of the opinion of Plaintiff's back surgeon, Dr. Gunter, that he remain off work until he could achieve better pain control, and she also assigned little weight to the opinions of Dr. Deal and Dr. Bergmann, as well as the GAF score. Tr. at 29, 31-32. Yet, she assigned "considerable weight as a whole" to the opinions of the non-examining state agency consultants Dr. King and Dr. O'Brien. Tr. at 31. However, even these consultants opined, "The totality of the evidence indicates depression due to pain that would limit [Plaintiff] to simple work tasks." Tr. at 107. The ALJ only assigned partial weight to the opinion of Dr. Ritz, finding a mild impairment, yet used this opinion against Dr. Deal and Dr. Bergmann. Tr. at 29-31. Of more concern, the ALJ did not assign weight to the opinions of Dr. Warrick, the doctor at Sumter Spine Pain Center to whom Dr. Aldrich referred Plaintiff in reference to his lumbar spine pain, or Dr. Storick, who evaluated Plaintiff at Carolina Spine Center upon request for a neurosurgical consultation. Tr. at 570-71, 653-55. Failure to assign weight to these opinions violated the regulations, which state "[r]egardless of its source, we will always consider the medical opinions . . . [and] we will evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(b),(c); see also 20 C.F.R. § 404.1527(a)(1) ("Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.").
The ALJ may conclude Plaintiff is not disabled, but she must explain her decision, evaluate all medical opinions, and consider the factors dictated by 20 C.F.R. § 404.1527. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (stating the ALJ must "build an accurate and logical bridge from the evidence to [her] conclusion"); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 260, 271 (4th Cir. 2017) (noting "treating and examining sources consistently opined that [the plaintiff's] chronic pain rendered him unable to work" and finding "the ALJ erred by crediting [the non-examining source] and rejecting the opinions of [the plaintiff's] treating and examining sources"). Because the ALJ's evaluation of Dr. Bergmann and Dr. Deal's opinions does not reflect her careful weighing of the relevant factors in 20 C.F.R. § 404.1527, and she failed to assign weight to the opinions of Dr. Warrick and Dr. Storick, the undersigned recommends the court find substantial evidence does not support the ALJ's decision.
b. Opinions of Dr. Aldrich
After Plaintiff's appointment on June 17, 2014, Dr. Aldrich provided a brief notation that he could only sit for fifteen minutes, not lift over five pounds, and was "disabled." Tr at. 622.
On October 13, 2014, Dr. Aldrich completed a Physical Capacities Evaluation Form. Tr. at 567-69. He opined Plaintiff could not engage in climbing, bending, or stooping due to lumbar spine pain; could never push and pull; could rarely reach or lift from floor-to-waist, from waist-to-shoulder, or over his shoulder; could sit, stand, or walk for zero hours; could speak or view a computer screen for three hours; could function frequently with his upper extremities for simple grasping, fine manipulation, and keyboarding; and was capable of working two hours per day of an eight-hour workday. Id. He indicated Plaintiff was being treated with pain medication and his prognosis for returning to work was poor. Id.
On April 29, 2015, Dr. Aldrich completed another Physical Capacities Evaluation Form. Tr. at 688-91. He opined Plaintiff could work, sit, stand, and walk for one hour, speak for three hours, and view a computer screen for two hours in an eight-hour workday. Id. As to upper extremity functioning, he opined Plaintiff could frequently do simple grasping, fine manipulation, and keyboarding; however, he could never push, pull, reach, lift, or carry. Tr. at 690-91.
The ALJ assigned little weight to these opinions because the extreme limitations were without support from the objective findings in Dr. Aldrich's own treatment notes and were inconsistent with the overall evidence in the record. Tr. at 29-30. The ALJ acknowledged Dr. Aldrich's treatment notes reflected lumbosacral pain, flat affect, poor gait, use of a cane, and difficulty standing or sitting at times, but she noted the doctor "frequently found normal range of motion of the spine, no acute distress, no edema, no pain on motion, normal strength and tone, no crepitus, and intact sensation." Id. The ALJ noted the "findings do suggest [Plaintiff] has some limitations, but those offered by Dr. Aldrich appear excessive." Tr. at 30.
Plaintiff argues the ALJ again failed to consider the relevant factors of evaluating opinion evidence required by 20 C.F.R. § 404.1527(c), as Plaintiff presented to Dr. Aldrich over twenty times between October 28, 2013, and May 12, 2016, for treatment of several impairments found by the ALJ to be severe, "including diabetes, lumbosacral radiculitis, pain syndrome, neuropathy, and depression." [ECF No. 19 at 29]; see also Tr. at 18. Plaintiff points out Dr. Aldrich was familiar with the combined effects and treatment of Plaintiff's severe and non-severe impairments, placing him in the best position to evaluate his limitations. [ECF No. 19 at 30]. He asserts this case is similar to Lytes v. Colvin, No. 2:12-2951-RMG, 2014 WL 204230 (D.S.C. Jan. 17, 2014), touching "upon two important policies of the Social Security Act, the Treating Physician Rule and regulations concerning the evaluation of chronic pain." Id.
The Commissioner counters the ALJ properly considered and discussed Dr. Aldrich's opinions, as they were too restrictive and inconsistent with the overall evidence. [ECF No. 21 at 9].
The ALJ's evaluation of Dr. Aldrich's opinions does not reflect adequate consideration of the relevant factors in 20 C.F.R. § 404.1527(c). Although the ALJ acknowledged that a treatment relationship existed, her decision does not reflect consideration of the frequency and length of the treatment relationship as required. As noted previously, "the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion," as he develops a "'longitudinal picture' of your impairment." 20 C.F.R. § 404.1527(c)(2)(i). Yet, the ALJ's decision does not acknowledge Plaintiff had seen Dr. Aldrich over twenty times and for almost three years at the time of the hearing. Tr. at 37. Moreover, the ALJ failed to acknowledge the various impairments for which Dr. Aldrich treated Plaintiff. See 20 C.F.R. § 404.1527(c)(2)(ii) (stating "the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion").
In light of the foregoing, the undersigned is constrained to find that the ALJ did not evaluate and weigh these opinions in accordance with the relevant regulations and SSRs.
2. Additional Allegations of Error
Plaintiff argues the ALJ erred by failing to include or explain restrictions pertaining to his moderate limitation in concentration, persistence, or pace in the RFC, similar to the ALJ's error in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). [ECF No. 19 at 18-21]. The Commissioner argues the ALJ addressed his mental impairments and found he could "understand, remember, and perform simple and detailed tasks," including same in the RFC and distinguishing this case from Mascio. [ECF No. 21 at 4-7].
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. § 404.1545(a)(1)) and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. September 24, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).