Opinion
No. 5:18-CV-00110-D
02-13-2019
Harvey Hair, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner, Defendant.
Memorandum & Recommendation
Plaintiff Harvey Hair instituted this action in March 2018 to challenge the denial of his application for social security income. Hair claims that the Administrative Law Judge ("ALJ") Joseph Booth, III, erred in (1) determining his residual functional capacity ("RFC"), (2) evaluating the medial opinion evidence, and (3) failing properly consider a previous disability finding. Both Hair and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 21, 24.
After reviewing the parties' arguments, the court has determined that ALJ Booth reached the appropriate determination. ALJ Booth properly determined Hair's RFC and, in doing so, considered all his exertional and non-exertional impairments. And substantial evidence supports ALJ Booth's consideration of both the medical opinion evidence and the prior disability determination, and the weight he given to this evidence. Therefore, the undersigned magistrate judge recommends that the court deny Hair's motion, grant the Commissioner's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In May 2014, Hair filed applications for disability insurance benefits and supplemental security income. In both applications, Hair alleged a disability that began in February 2012. After his claims were denied at the initial level and upon reconsideration, Hair appeared before ALJ Booth for a hearing to determine whether he was entitled to benefits. ALJ Booth determined Hair was not entitled to benefits because he was not disabled. Tr. at 11-22.
Hair later amended his onset date to February 2013. Tr. at 11.
ALJ Booth found that Hair had severe impairments of status-post anterior cervical discectomy and fusion, degenerative joint disease of the left knee, and degenerative disc disease. Tr. at 13. ALJ Booth also found that Hair's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 15.
ALJ Booth then determined that Hair had the RFC to perform light work with additional limitations. Id. Hair must be able to alternate to stand for one hour after an hour of sitting, and sit for one hour after an hour of standing or 30 minutes of walking. Tr. at 15, 70. He can frequently reach overhead bilaterally in all directions. Tr. at 15.
Hair can frequently climb ramps, stairs, ladders, ropes, and scaffolds, and frequently use stepladders that are no more than four feet high. Id. But he cannot climb ladders above that height or ropes and scaffolds of any height. Id. Hair can frequently stoop and kneel, and he can occasionally balance and crawl. Id.
The RFC finding appears internally inconsistent by concluding both that Hair can frequently climb ropes and scaffolds, and that he can never climb ropes or scaffolds of any height. Tr. at 15.
Hair can have frequent exposure to unprotected heights, moving mechanical parts, and he can operate a motor vehicle. Id. He can have frequent exposure to dust, odors, fumes, and pulmonary irritants. Id. Hair may have occasional exposure to vibration, and he may be exposed to loud noise levels. Id.
Hair is limited to non-production rate pace work (e.g., no assembly line work or work with production-based performance quotas). Id. And his time off-task can be accommodated by normal breaks. Tr. at 15-16. Finally, Hair is limited to only frequent changes in the work-setting and the manner and method of performing the assigned work. Tr. at 16.
ALJ Booth concluded that Hair could not perform his past relevant work as a truck driver. Tr. at 20. But ALJ Booth determined that, considering his age, education, work experience, and RFC, there were other jobs existing in significant numbers in the national economy that Hair could perform. Tr. at 21. These include garment sorter, ticket taker, and routing clerk. Id. Thus, ALJ Booth found that Hair was not disabled. Tr. at 21-22.
After unsuccessfully seeking review by the Appeals Council, Hair began this action in March 2018. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Hair has a history of back and lower extremity impairments. These problems began after a boating accident and an injury sustained while driving a truck. Tr. at 84.
Both incidents occurred before the onset date relevant to the present application.
In 2014, Hair received treatment at Betsy Johnson Regional Hospital and Benson Area Medical Center for his back pain. Tr. at 17. Providers assessed radiculopathy and prescribed him medications. Id. Hair sought follow-up care for low back pain that radiated into his left buttock. Id. Hair had a decreased range of motion, for which providers prescribed medication and directed him to use heating pads. Id.
In July 2014, Dr. Alan Cohen performed a consultative examination. Id. Dr. Cohen observed no muscle tenderness or atrophy, and Hair could sit, stand, and walk. Id. Hair could not squat and he displayed a partial left foot drop, but he had a steady gait. Id. Although Hair could pinch, grasp, and manipulate objects, he could not reach his arms overhead. Id. An examination also showed decreased range of motion in the spine and left ankle as well as a mildly positive straight leg raise from a supine position. Id.
Dr. Cohen assessed degenerative disease of the cervical spine with a chronic but stable lumbosacral strain as well as stable impingement of the left shoulder. Id. Dr. Cohen opined that Hair could walk a block at a reasonable pace and climb a few steps at a reasonable pace with a handrail. Id. He concluded that Hair had limited use of his upper extremity for carrying objects and he was moderately impaired in his his stamina as well as his ability to move about and lift. Id.
Dr. Theresa Miche, Hair's primary care provider, issued a Medical Source Statement in August 2015. Tr. at 18. Her diagnoses included chronic low back pain, neuropathy, gait disturbance, and depression. Id. Dr. Miche noted that Hair walked with a limp, had decreased range of motion, and displayed diminished strength. Id. Dr. Miche opined that Hair could sit, stand, and walk for less than two hours in an eight-hour workday, would be off-task for 25% of the day, and would miss four or more days of work per month. Id. She also concluded that Hair was incapable of even low-stress jobs. Id.
The record identifies Miche as both a physician assistant and a medical doctor. Tr. at 435-471.
In January 2016, Hair underwent surgery. Id. Providers performed a C5-6 anterior cervical discectomy and fusion. Id. Records from a follow-up visit the next month noted that Hair's radiculopathy had completely resolved, and Hair reported he could perform yard work. Id.
Hair later complained of neck and back pain at an appointment with Advanced Spine & Pain Center. Id. Although he displayed some limitations in the range of motion of his spine, records reflect that Hair was recovering well and his pain likely resulted from his recent surgery. Id. Providers increased his pain medication. Id.
In May 2016, providers observed that Hair's medication regimen provided fair control of his pain symptoms. Id. The next month, Hair told providers that he took his medications on an as-needed basis, and that he had not taken the medications for two weeks. Id. Two months later, records reflect that Hair had partially improved but had worsening arm pain. Id.
Hair testified that he experiences neck and back pain. Tr. at 16. He also reported pain in his shoulder blades and ankles. Id. Hair takes pain medication, occasionally uses a cane, and wears leg braces. Id. Hair stated that he has numbness in his arms and legs and experiences headaches. Id. He must move every 15-20 minutes when seated and he can stand for 15-20 minutes. Id. Hair is independent in caring for his personal needs although he requires help to get in and out of the shower. Id. Hair can do some chores like cooking, using the dishwasher, and performing yard work. Id.
D. Residual Functional Capacity
Hair contends that ALJ Booth erred in finding that his condition improved following his January 2016 surgery because the record shows he continued to experience pain and other symptoms. The Commissioner argues that the records supports ALJ Booth's finding that Hair's status was better after his surgery. The undersigned finds no error in ALJ Booth's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity "assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling further explains that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. But "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly-conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-cv-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. July 26, 2010))).
In determining that Hair can perform a reduced range of light work, ALJ Booth discussed the medical record, including Hair's statements, objective testing, treatment records, and medical opinion evidence. Tr. at 16-19.
ALJ Booth observed that Hair's degenerative disc disease stabilized. Tr. at 17. Before his surgery, the record showed Hair reported back pain with radiculopathy, he had decreased range of motion and some muscle atrophy, and straight leg testing revealed mildly positive results. Id. And one provider opined that Hair was limited in his abilities to move about and lift objects. Id.
But following his January 2016 back surgery, Hair's provider noted that his radiculopathy had completely resolved. Tr. at 18. And Hair reported that he could perform yard work. Id. Although follow-up appointments showed some stiffness, muscle cramps, and decreased range of motion, providers found that Hair was recovering well. Id. Four months after his surgery, providers noted that his medication regimen provided Hair fair control of his symptoms. Id. The next month, Hair stated that he only took medications as needed, and had not taken them for two weeks. Id.
Given this evidence, ALJ Booth determined that while Hair may have some occasional difficulty and cannot perform all the tasks he did before, the record showed he was not disabled nor as limited as he alleged. Id.
Hair contends that the record shows an initial improvement following surgery, but it also shows that he later reported a return of his symptoms. For example, treatment noted reflect that in February 2016, Hair complained of neck pain radiating into his bilateral upper extremities as well as lower extremity pain with neuropathy. An MRI six months later revealed multilevel disc protrusion causing cord compression at C4-5. And Hair testified that he experienced less numbness following surgery but that he continued to have significant pain symptoms.
The Commissioner observes that ALJ Booth did not disregard Hair's symptoms following surgery. She notes that Hair complained of pain and providers increased his medications. Tr. at 18. But, as ALJ Booth noted, the evidence also showed that Hair's condition generally improved. Hair's medication afforded him fair control of his symptoms, and he took pain medication on an as-needed basis. Id. ALJ Booth's findings did not conclude Hair was symptom-free but determined that his overall status was better following surgery.
Hair has failed to identify more restrictions on his functioning that the evidence well-supports but ALJ Booth did not consider. Because the record bears out ALJ Booth's determination that Hair experienced an improvement in his condition following surgery, although he continued to experience some symptoms, the undersigned cannot find that he erred in determining the RFC. See Harrell v. Berryhill, No. 5:17-CV-484-D, 2018 WL 6362627, at *7 (E.D.N.C. Oct. 31, 2018) (rejecting claimant's proposition that presence of contradictory evidence on her functional abilities renders ALJ's findings erroneous. Fact that substantial evidence must support ALJ's findings does not preclude possibility that record contains evidence contrary to them), adopted by 2018 WL 6345353 (E.D.N.C. Dec. 5, 2018). So Hair's argument on this issue lacks merit.
E. Medical Opinion Evidence
Hair also argues that ALJ Booth failed to properly weigh the medical opinion evidence. He maintains that Dr. Miche's assessment, which ALJ Booth assigned little weight, fits records from Advanced Pain & Spine as well as Benton Area Medical Center. The Commissioner asserts, and the undersigned agrees, that ALJ Booth did not err in considering the medical opinion evidence.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
In January 2017, the Social Security Administration published final rules titled "Revisions to Rules Regarding the Evaluation of Medical Evidence." 82 Fed. Reg. 5844; see also 82 Fed. Reg. 15132 (Mar. 27, 2017) (amending and correcting the final rules published at 82 Fed. Reg. 5844). The revisions rescinded several Social Security Rulings. See Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (Mar. 27, 2017).These final rules became effective on March 27, 2017. Thus, they do not apply to the ALJ's decision here, issued in November 2016. The court will cite only to the rules in effect at the time of the ALJ's decision.
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "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 [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ should explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must offer an explanation of the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
ALJ Booth thoroughly discussed the medical evidence. Tr. at 14-19. He noted that Dr. Miche issued a Medical Source Statement in August 2015, over four months before Hair's back surgery. Tr. at 18-19. Dr. Miche's treatment records showed Hair experienced chronic back pain, had decreased range of motion and decreased strength, and walked with a limp. Tr. at 18. Dr. Miche opined that Hair could sit, stand, or walk for less than two hours in an eight-hour workday, would be off-task for 25% of the workday, and would miss four or more days of work every month. She also concluded that Hair was incapable of even low-stress jobs. Id.
But ALJ Booth determined that Dr. Miche's assessment was inconsistent with the overall record. Tr. at 19. ALJ Booth particularly remarked that the evidence showed an improvement in Hair's condition following his surgery, which occurred after Dr. Miche issued her statement. Id.
Hair points to evidence from Advance Pain & Spine Center reflecting that he reported neck pain and low back pain with radiculopathy, as well as numbness, tingling, and an antalgic gait. And Benton Area Medical Center records show that his depression and anxiety symptoms continued after his surgery.
But Advance Pain & Spine records also show that Hair's radiculopathy completely resolved following surgery. Tr. at 18. And after his surgery, records reflect that Hair's medication afforded him fair control of his symptoms, he took pain medication on an as-needed basis and, at one visit, reported that he had not needed his medication in two weeks. Id. And just a few weeks after his surgery, Hair reported to providers that he could do yard work. Id.
ALJ Booth concluded that although Hair had depression, it was not a severe impairment that caused more than a minimal effect on Hair's functioning. Tr. at 14.
This evidence undermines Dr. Miche's findings that Hair's functioning was severely restricted. It also casts doubt on her opinion that Hair's condition could be expected to last at least 12 months because he displayed improvement in his condition following a surgery some four months later. So ALJ Booth's assignment of little weight to this opinion is not improper.
In sum, some evidence supporting Dr. Miche's opinion neither negates the merit of evidence inconsistent with it nor invalidates ALJ Booth's determination that it deserved little weight. Finding no error in ALJ Booth's consideration of the medical opinion evidence, the undersigned recommends that the court reject Hair's argument on this issue.
F. Prior Decision
Hair next asserts that ALJ Morris's erred in failing to explain or adopt a prior determination's RFC finding. The Commissioner contends that ALJ Booth properly accorded only partial weight to the prior determination and did not adopt all the limitations in its RFC finding because the evidence supports a finding that Hair's condition had improved since that time. The undersigned finds that ALJ Booth did not err in considering the prior disability decision.
The SSA issued Acquiescence Ruling 00-1(4), 65 FR 1936-01 (Jan. 12, 2000), which addressed a Fourth Circuit case, Albright v. Commissioner of Social Security Administration, and the consideration of prior agency decisions:
[W]here a final decision of SSA after a hearing on a prior disability claim contains a finding required at a step in the sequential evaluation process for determining disability, SSA must consider such finding as evidence and give it appropriate weight in light of all relevant facts and circumstances when adjudicating a subsequent disability claim involving an unadjudicated period.AR 00-1(4); Albright, 174 F.3d 473 (4th Cir. 1999). In determining whether to consider a prior finding as evidence, AR 00-1(4) addresses how adjudicators of later claims should consider findings made in earlier claims and the appropriate weight to be given the earlier findings given the facts and relevant circumstances. It directs an ALJ to look to:
(1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.Id. An ALJ need not walk through each factor in order to comply with AR 00-1(4). Reviewing and evaluating all the evidence presented at the correct standard complies with the acquiescence ruling. See Melvin v. Astrue, 602 F. Supp. 2d 694, 702 (E.D.N.C. 2009) ("Although the ALJ did not specifically refer to AR 00-1(4) . . . or explain the precise weight he gave to the [prior ALJ's findings], the ALJ did consider the prior ALJ's findings as part of reviewing the record . . . In doing so, the ALJ complied with AR 00-1(4). The ALJ also complied with . . . Albright.").
Courts within the Fourth Circuit have generally found remand appropriate under AR 00-1(4) where an ALJ neglects to discuss a prior decision at the administrative hearing level, and the prior decision contains findings more favorable to the claimant than the ALJ's subsequent decision. See Barbee v. Colvin, No. 5:14-CV-424, 2015 WL 5039124, at *8-9 (E.D.N.C. Aug. 7, 2015) (recommending remand where ALJ's RFC finding did not include sit/stand option that was contained in past decision and ALJ failed to discuss past decision), adopted by 2015 WL 5054402 (E.D.N.C. Aug. 26, 2015). Here, however, ALJ Booth addressed the previous disability determination and concluded it deserved partial weight. Tr. at 19-20.
In 2013, a determination of Hair's previous disability application found he was not disabled. Tr. 80-89. In reaching that conclusion, the ALJ found that Hair could perform a reduced range of light work. Tr. at 83. His limitations included occasionally climbing of ramps and stairs but no climbing ladders, ropes, or scaffolds; occasionally balancing, stooping, kneeling, crouching, and crawling; occasionally reaching overhead bilaterally; and avoidance of concentrated exposure to moving machinery, hazardous machinery, and unprotected heights. Id.
The Commissioner contends that ALJ Booth's decision makes clear his reasons for according the prior disability determination only partial weight. ALJ Booth noted that the evidence since the earlier decision reflected an improvement in Hair's condition. It is thus reasonable that the present RFC determination would be less restrictive than the earlier RFC finding as Hair's functional abilities improved.
Case law makes it clear that an ALJ must consider and weigh prior determinations, but an ALJ is not required to explicitly discuss prior disability findings. First, AR 00-1(4) states that less weight may be given to a prior finding "as the proximity of the period previously adjudicated to the period being adjudicated in the subsequent claim becomes more remote, e.g., where the relevant time period exceeds three years as in Albright." AR 00-1(4), 2000 WL 43774, at *4. Here, three years and a half passed between the two disability decisions. ALJ Booth was entitled to find the prior decision less probative to the relevant period at issue before him where, as here, the evidence suggests Hair's condition improved in the interim period.
And, as noted above, substantial evidence supports ALJ Booth's RFC determination. The evidence shows that Hair's radiculopathy resolved, providers found that he was recovering well, his medications provided him fair control of his symptoms, and he took medication only as-needed. Tr. at 18. Hair reported at one visit that he had not needed his medications for two weeks and at another appointment he stated he could perform yard work. Id.
So this evidence supports ALJ Booth's finding that Hair experienced an improvement in his condition following surgery. While ALJ Booth acknowledged that Hair continued to experience some symptoms, they were neither as severe as he claimed nor debilitating. Given the evidence of improvement, ALJ Booth did not err in assigning partial weight to the previous disability determination. And many of ALJ Booth's findings about Hair's RFC remained much like the earlier determination.
Having not only considered and weighed the prior disability finding, but identifying a change is Hair's condition as the basis to depart from the earlier findings, ALJ Booth complied with both AR 00-1(4) and Albright. See Melvin, 602 F. Supp. at 702. Finding no error in ALJ Booth's consideration of the prior disability finding, the undersigned recommends that the court reject Hair's argument to the contrary.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court deny Hair's Motion for Judgment on the Pleadings (D.E. 21), grant Berryhill's Motion for Judgment on the Pleadings (D.E. 24), and affirm the Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: February 13, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE