Opinion
C. A. 9:20-cv-00135-TMC-MHC
05-18-2021
Rex Harvey, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Rex Harvey (Harvey) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for disability insurance benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
I. BACKGROUND
A. Procedural History
On February 29, 2016, Harvey filed an application for DIB, alleging an onset date of disability of January 11, 2016. R.pp. 16, 252-58. His application was denied initially and upon reconsideration. R.pp. 137-72, 178-88. He requested an administrative hearing before an ALJ. R.pp. 189-90. On June 21, 2018, a hearing was held, at which Harvey (represented by counsel) and a vocational expert testified. R.pp. 96-135. On January 29, 2019, the ALJ issued a decision in which he found that Harvey was not disabled. R.pp. 16-31. Although the ALJ found that Harvey had severe impairments, the ALJ determined that these impairments did not meet or equal the severity of one of the listed impairments. R.pp. 20-22. Despite Harvey's severe impairments, the ALJ found that Harvey was capable of performing a limited range of medium work with postural, environmental, and mental limitations. R.p. 22.
Harvey requested review of the ALJ's decision by the Appeals Council, and on November 20, 2019, the Appeals Council denied Harvey's request, making the ALJ's decision final for purposes of judicial review. R.pp. 1-6, 186-88; see 20 C.F.R. § 404.981. This appeal followed.
B. Relevant Facts
Harvey completed high school and previously worked as an assembler on a production line, an industrial truck operator, a stock clerk, a solderer, a paint line worker, and a laborer. R.pp. 48-52, 279.
In January 2016, Harvey sought emergency treatment for left-sided weakness and slurred speech. R.p. 365. Examination and testing revealed negative results, and Harvey was discharged with diagnoses of resolved transient ischemic attack (TIA) and left-sided weakness, mild coronary artery disease, benign hypertension, hypothyroidism, hyperlipidemia, morbid obesity, and stable chronic pain syndrome. R.pp. 365-409. Harvey's grip strength increased, and his gait returned to normal following physical therapy. R.pp. 414-41.
During a May 2016 consultative examination, Catherine Millender, M.D., recorded normal examination findings, including normal gait, normal bilateral grip strength, normal neurological findings, and normal mental status findings. R.pp. 444-45. Dr. Millender diagnosed “[h]istory of stroke, ” “[s]ubjective lower back pain, ” and “[n]europathy of unknown etiology, ” and opined that Harvey should be able to sit or walk for a full workday, but, because of his “subjective complaints without objective evidence of low back pain and vertigo, ” he might have limited ability to stand, lift, or carry. R.p. 445. She also opined that Harvey could hold a conversation, respond appropriately to questions, and carry out and remember instructions. R.p. 445.
In June 2016, Tauqueer Alam, M.D., submitted a one-page medical source statement in which he noted that when he examined Harvey on June 7, 2016, Harvey exhibited a slowed and distractible thought process, a depressed mood, poor attention and concentration, and adequate memory. R.p. 446. Dr. Alam opined that Harvey had adequate ability to perform activities of daily living and relate to others, and poor ability to complete simple, routine tasks and complex tasks. R.p. 446.
During a July 26, 2016, consultative examination, David Cannon, Ph.D., recorded normal mental status findings, including full orientation, unremarkable mood, normal speech, and intact judgment and insight. R.pp. 448-49. Harvey recalled two of three items after four minutes, and performed serial threes effectively. R.p. 449. Harvey reported that he drove, managed his finances, performed self-care activities, prepared some meals, performed limited housework, did laundry, shopped, went to church, and watched television. R.p. 449. Dr. Cannon opined that Harvey could maintain concentration and pace sufficiently to complete tasks in a timely fashion in a work environment. R.p. 449. He diagnosed adjustment disorder with mixed anxiety and depressed mood, anxiety disorder, and intermittent explosive disorder. R.p. 449.
On August 8, 2016, state agency physician Delsadie Callins, M.D., reviewed the record and opined that Harvey could lift fifty pounds occasionally and twenty-five pounds frequently; stand and/or walk for about six hours in an eight-hour day; sit for about six hours in an eight-hour day; never climb ladders, ropes, or scaffolds; occasionally crawl and climb ramps and stairs; frequently balance, stoop, kneel, and crouch; perform limited front and lateral reaching on the right side; and he must avoid concentrated exposure to hazards. R.pp. 163-65.
State agency psychologist John Petzelt, Ph.D., reviewed the record and opined that Harvey's mental impairments caused mild restrictions in his activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no repeated episodes of decompensation, each of extended duration. R.p. 161. In a mental RFC assessment, Dr. Petzelt opined that Harvey's mental impairments caused no significant limitations in Harvey's ability to carry out very short and simple instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted 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 No. and length of rest periods. R.pp. 167-68.
In September 2016, Harvey complained of numbness and tingling in his hands and feet. R.p. 484. He exhibited decreased grip strength, but examination findings were otherwise unremarkable. R.p. 484. He was advised to continue his medication and to use his CPAP machine regularly. R.p. 485. In December 2016, Harvey began pain management treatment for pain in his low back and right shoulder. R.pp. 584-86.
In January 2017, Harvey requested completion of disability paperwork. R.p. 582. He reported that he could sit for only one hour at a time, stand for a few minutes at a time, and lift no more than ten to twenty pounds. R.p. 582. He also reported that he had to use a motorized cart when he went to the grocery store. R.p. 582. Jason Gosnell, D.O., observed 3/5 strength in Harvey's left arm, decreased sensation in his left-hand fingers, and tenderness over his back. R.p. 583. Harvey exhibited a full range of motion in his shoulders, elbows, and knees, and full strength in his right arm. R.p. 583. Dr. Gosnell opined that Harvey could not perform any meaningful work because of pain and loss of dexterity and strength in his left arm. R.p. 583.
Harvey's symptoms remained stable in March 2017. R.pp. 579-80. In April 2017, Harvey sought treatment for symptoms of adult attention deficit disorder. R.p. 577. He reported difficulty remembering important information and becoming easily distracted. R.p. 577. Dr. Gosnell prescribed Adderall. R.p. 578. He recorded stable examination findings in May 2017 and June 2017. R.pp. 571-72, 574-75.
In March 2018, Timothy Zeller, M.D., drafted a letter in which he reported that Harvey, who had been his patient for two months, was unable to perform the essential functions of any gainful employment because of Harvey's medical conditions and the effects they had on his physical and mental abilities. R.p. 589. Those medical conditions included hypothyroidism, obstructive sleep apnea, congestive heart failure, hypertension, hyperlipidemia, chronic degenerative disc disease of the lumbar spine, depression, and history of stroke. R.p. 589.
A May 2018 EMG/nerve conduction study revealed severe bilateral carpal tunnel syndrome (CTS) and bilateral C6-7 radiculopathies. R.p. 595. The EMG findings noted that Harvey needed custom CTS bracing. R.p. 595. A nerve conduction study of his lower extremities revealed bilateral lumbar radiculopathy at ¶ 4, but no evidence of tarsal tunnel derangement or peripheral polyneuropathy. R.p. 596.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the exertion required to perform the claimant's past relevant work exceeds his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant No. in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. DISCUSSION
A. ALJ's findings
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Harvey was disabled from the alleged onset date of January 11, 2016. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since January 11, 2016, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: residuals of a cerebrovascular accident (CVA)/[transient ischemic] attack (TIA), spine disorder, carpal tunnel syndrome (CTS), obesity, and affective disorders (20 CFR 404.1520(c)).
4. The claimant also has the following non-severe impairments: hypertension, coronary artery disease (CAD), obstructive sleep apnea (OSA), and anxiety (20 CFR 404.1522 and 416.922).
5. 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).
6. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c). The claimant can lift or carry up to fifty pounds occasionally and twenty-five pounds frequently. The claimant can never climb ladders, ropes or scaffolds; occasionally climb ramps and stairs; frequently balance, stoop, crouch, kneel, or crawl; and perform occasional left overhead reaching and frequent bilateral handling and fingering. The claimant is limited to frequent use of moving machinery or exposure to unprotected heights. The claimant is further limited to work with simple, routine and repetitive tasks, which can be performed for two-hour blocks of time with normal rest breaks during an eight-hour workday.
7. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
8. The claimant was born on November 11, 1965 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563).
9. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
10. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
11. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant No. in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569a).
12. The claimant has not been under a disability, as defined in the Social Security Act, from January 11, 2016, through the date of this decision (20 CFR 404.1520(g)).
R.pp. 18-31.
B. Harvey's contentions of error
Harvey argues that the ALJ failed to offer adequate support for the RFC determination. ECF No. 14 at 21. In addition to generally arguing that substantial evidence does not support the ALJ's decision, Harvey contends various errors warrant remand. Specifically, he maintains that (1) the ALJ made a medical determination that he was not qualified to make, (2) the ALJ misunderstood the meaning of “acute distress, ” (3) the ALJ improperly cherry-picked evidence while failing to reconcile conflicting evidence, (4) the ALJ improperly considered Harvey's conservative treatment and/or his failure to pursue treatment, and (5) the ALJ improperly relied on Harvey's daily activities in determining the RFC. For the following reasons, none of these alleged errors warrant remand.
Harvey initially appeared to argue that the Medical-Vocational Guidelines (or “Grids”) directed a finding of disability under Grid Rule 201.14. See ECF No. 14 at 26. However, Harvey clarified in his Response that he was not arguing the applicability of this rule, see ECF No. 16 at 7-8, and therefore the Court does not address it.
1. The ALJ did not improperly “play doctor.”
Harvey argues that the ALJ improperly played doctor. ECF No. 14 at 23. Specifically, Harvey takes issue with the following portion of the ALJ's decision:
While the medical evidence of record reveals that the claimant has a history of a CVA [cerebrovascular accident]/TIA, spine disorders, CTS and obesity, the objective findings support the RFC. Diagnostic tests revealed that the claimant had bilateral CTS with cervical and lumbar radiculopathy; however, a MRI of the lumbar spine revealed no severe central canal or neural foraminal narrowing to account for the lower extremity pain. A MRI of the cervical spine revealed some left sided foraminal narrowing at ¶ 3-4 but no evidence of neural impingement or other significant abnormalities.
R. pp. 25-26. Harvey appears to argue that the ALJ interpreted raw medical data and made a medical determination because the ALJ noted that the MRI revealed no severe central canal or neural foraminal narrowing that accounted for the lower extremity pain Harvey was experiencing, and the ALJ noted the MRI did not reveal evidence of neural impingement or other significant abnormalities. See ECF No. 14 at 23. This argument is without merit.
Certainly, ALJs cannot play the role of doctor. See Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) (recognizing “that an ALJ cannot play the role of doctor and interpret medical evidence when he or she is not qualified to do so”). However, this portion of the ALJ's decision- with which Harvey takes issue-comes from the medical impressions of the physicians who reviewed the MRIs. See R.pp. 597, 600. Indeed, the ALJ relayed the above conclusions almost verbatim from the “medical impressions” section of the MRIs. See Id. Thus, the ALJ did not interpret raw medical data. See Smith v. Colvin, No. 6: 15-CV-1750-PMD-KFM, 2016 WL 2619474, at *3 (D.S.C. May 9, 2016) (noting the “ALJ's finding that the MRI was unremarkable except for moderate right hip effusion” was not “a lay interpretation of an MRI” but instead was “an accurate summary of notes made by the radiologist who reviewed the MRI”). Rather, the ALJ relied on the physician's interpretations of the data, and then used those interpretations in formulating Harvey's RFC-precisely what the regulations contemplate. See 20 C.F.R. § 404.1545(a)(1), (a)(3) (noting a claimant's RFC, which represents “the most [he] can still do despite [his] limitations, ” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence”); SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (noting an ALJ's “RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” (emphasis added)).
Social Security Rulings, or “SSRs, ” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration, ” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Moreover, this is not a case where the ALJ's RFC determination is based solely on raw medical data. Cf. Dennis v. Colvin, 195 F.Supp.3d 469, 474-75 (W.D.N.Y. 2016) (determining that remand was necessary to allow the ALJ to obtain medical opinion evidence where “here there is no medical opinion at all supporting the ALJ's finding; this is not a matter of an ALJ's RFC finding simply diverting somewhat from the supporting medical opinion” (emphasis added)). Indeed, the suggestion that the ALJ took it upon himself to interpret raw medical data and “play doctor” is simply unsupported; rather, the record is replete with medical opinion evidence. See R.pp. 154-171, 442-49, 582-83, 589. The ALJ thoroughly discussed and weighed this opinion evidence in the decision-ultimately relying on it to formulate the RFC. See R.pp. 27-29. Consequently, Harvey's argument that the ALJ “played doctor” in making the RFC determination is without merit. Cf. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay person, however, the ALJ was simply not qualified to interpret raw medical data in functional terms and no medical opinion supported the determination.” (emphasis added)). The Court recommends affirming on this issue.
2. The ALJ did not misunderstand the meaning of “acute distress.”
Harvey argues that the ALJ misunderstood the meaning of “acute distress” as it is used in medical parlance, such that remand is warranted. ECF No. 14 at 24-25. The basis for this argument is from the following portion of the ALJ's decision:
Moreover, physical exams revealed that the claimant had some left sided weakness in his left arm, some decreased sensation in the left fingers, and some tenderness over his low back, but the claimant was in no acute distress, he ambulated without assistance, his neck was supple, his heart and lung sounds were normal, his gait and station were normal, he generally had no edema in his extremities, he had full strength in his right arm and lower extremities with adequate fine motor movements, dexterity and ability to grasp objects and he had no muscle atrophy or tenderness of any joint. His cranial nerves were intact, his cerebellar exam was normal, and his reflexes of the lower extremities were symmetric (Exhibits 3F, 10F).
R.p. 26. Harvey argues that these findings are unreasonable and appears to contend that the ALJ's misunderstanding of the term “acute distress” led to an erroneous RFC determination. This argument is without merit.
When read as a whole, nothing in the ALJ's thorough discussion of the evidence suggests that he misunderstood the meaning of “acute distress, ” nor is there a suggestion that this finding of “no acute distress” was the foundation upon which the ALJ based his RFC determination. See R.pp. 23-29. Rather, the above portion of the ALJ's decision illustrates the weighing of conflicting evidence, which is precisely what the ALJ is supposed to do. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996))). It is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. Id. (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].”).
Harvey's citation to Masters v. Astrue in his brief is unavailing. See Masters v. Astrue, No. 3: 10-2477-RBH-JRM, 2012 WL 3029627 (D.S.C. Mar. 6, 2012), report and recommendation adopted, No. 3:10-CV-02477-RBH, 2012 WL 3029634 (D.S.C. July 25, 2012). Masters dealt with an ALJ discounting a medical opinion in part because the doctor's treatment notes indicated that the claimant was in “no acute distress” but other records (including another doctor's opinion) indicated the claimant continued to have chronic problems. Id. at *6. Ultimately the District Court in that case found that the ALJ's decision to discount the doctor's opinion-in contravention to the treating physician rule-was not supported by substantial evidence. Id.
Here in Harvey's case, the ALJ did not discount a treating physician's medical opinion on this basis, nor is the treating physician's rule even at issue. Consequently, Harvey's insistence that the “facts [of Masters] match the facts of this case precisely” is incorrect. Masters does not compel or even suggest remand is warranted in a situation where, as here, an ALJ merely notes that the claimant was in “no acute distress” as a part of a broader discussion in which the ALJ was weighing evidence. The Court therefore recommends affirming on this issue.
The “treating physician rule” established by both SSA policy and Fourth Circuit precedent, “requires that ALJs give ‘controlling weight' to a treating physician's opinion on the nature and severity of the claimant's impairment if that opinion is (1) ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) ‘not inconsistent with the other substantial evidence' in the record.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106 (4th Cir. 2020) (emphasis added) (quoting 20 C.F.R. § 404.1527(c)(2)); see also SSR 96-2p, 1996 WL 374188 (S.S.A. July 2, 1996).
3. The ALJ did not improperly cherry-pick evidence.
Harvey argues that the ALJ improperly cherry-picked evidence that supported the RFC determination but ignored contrary evidence that would have supported a disability finding. ECF No. 14 at 25. He maintains that the ALJ failed to reconcile conflicting findings/evidence, such that remand is warranted. This argument is without merit.
As already noted, the ALJ acknowledged and weighed conflicting evidence. Indeed, in addition to the already cited portions above, the ALJ explicitly discussed Harvey's ability to work despite positive MRI findings, obesity, CTS, weakness, and Harvey's complaints of pain. R.pp. 22-29. For example, the ALJ limited Harvey to medium exertional work to account for his left-sided weakness. R.pp. 22-29. He included numerous postural limitations to account for Harvey's complaints of pain, as well as the residual effects of his stroke. R.pp. 22-29. He limited Harvey's reaching, handling, and fingering to account for Harvey's CTS. R.pp. 22-29. He limited Harvey's exposure to hazards to account for his residual weakness. R.pp. 22-29. Finally, he limited Harvey to simple, routine, repetitive tasks that can be performed for two-hour blocks of time with normal rest breaks to account for Harvey's mental impairment. R.pp. 22-29.
Consequently, the ALJ did not disregard Harvey's complaints or the positive medical findings. See Smith, 2016 WL 2619474, at *3 (“[T]he ALJ's decision shows he carefully considered all the evidence in the record and, where appropriate, even made findings that favored [the claimant].”). Rather, the ALJ properly performed the duty reserved to the ALJ as the finder of fact by weighing the relevant evidence in reaching his determination. See 20 C.F.R. §§ 404.1527(d)(2), .1545(a); .1546(c). In doing so, the ALJ did not selectively rely on some evidence to the exclusion of evidence favorable to Harvey, but instead carefully considered the relevant evidence in the context of the entire record. See R.pp. 22-29; see also Smith, 2016 WL 2619474, at *3 (rejecting the claimant's argument that the ALJ cherry-picked the evidence where the ALJ did not rely on some evidence to the exclusion of evidence favorable to claimant). Considered in its entirety, the ALJ's decision was based upon an accurate portrayal of Harvey's longitudinal treatment history, which supported the finding of non-disability. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” (quotation marks and citation omitted)). Therefore, the Court recommends affirming on this issue.
4. The ALJ did not improperly consider Harvey's conservative treatment and/or Harvey's failure to pursue treatment.
Harvey argues that the ALJ erred in considering his conservative treatment, arguing that there is “no type of specialized treatment that is required before a person can be limited to sedentary work.” ECF No. 14 at 25. He further argues that the ALJ improperly drew an adverse inference from his failure to pursue treatment, such that remand is required. This argument is without merit.
Here, the ALJ noted the following:
The claimant has received only conservative treatment for his allegedly incapacitating pain and symptoms. He has not required surgical intervention. Hospital discharge records from his CVA noted that his weakness and slurred speech had resolved (Exhibit IF). He received physical therapy following his CVA, where it was noted that he reached all of his goals (Exhibit 2F). Pain management records indicated that he was stable on medications. Additionally, treatment records indicate that the claimant was treated with braces for his CTS. The claimant's obesity is necessarily a contraindication regarding his overall well-being and he has been advised to lose weight. Although the I acknowledge some evidence suggesting the claimant cannot afford adequate medical care, there is no evidence to demonstrate that he needed additional medical care or that the he has sought help through the multitude of channels available for indigent individuals, such as those offered by charities. Such moderate treatment for a condition alleged to be incapacitating does not support the claimant's allegations as to the intensity and persistence of the symptoms limiting the claimant's ability to perform work-related activities.
R.p. 26.
As an initial matter, the regulations contemplate the scope of treatment as a relevant factor an ALJ should consider in evaluating a claimant's symptoms. See 20 C.F.R. § 404.1529(c)(3)(iv) (noting that treatment “is also an important indicator of the intensity and persistence of your symptoms” and explicitly listing treatment as a relevant factor that the ALJ can use to evaluate the severity of a claimant's symptoms); see also SSR 96-7P, 1996 WL 374186, at *7 (S.S.A. July 2, 1996) (“[T]he individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints[.]”). Thus, to the extent that Harvey appears to argue that the ALJ erred by considering Harvey's conservative treatment, he is mistaken. See Williams v. Colvin, No. 2: 14-CV-02129-RBH, 2015 WL 4878819, at *14 (D.S.C. Aug. 14, 2015) (explaining that the ALJ properly considered the record in evaluating claimant's subjective complaints, including the conservative treatment).
Nevertheless, it would be error for an ALJ to draw an adverse inference on a claimant's failure to pursue medical treatment without also considering reasons that may explain why the claimant failed to seek medical treatment in the first place. See SSR 96-7P, 1996 WL 374186, at *7 (“However, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.” (emphasis added)).
Here, the ALJ explicitly considered evidence suggesting that Harvey cannot afford medical care, but also noted that there was no evidence to demonstrate that Harvey needed additional medical care or that the he had sought help that is available for indigent individuals. R.p. 26. This is precisely what SSR 96-7p directs ALJs to do; thus, there is no error here. See SSR 96-7P, 1996 WL 374186, at *7. The ALJ considered the evidence-Harvey just disagrees with the ALJ's ultimate conclusion. This is not a valid reason for remand. See Johnson, 434 F.3d at 653 (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].”). Accordingly, the Court recommends affirming on this issue.
5. The ALJ did not improperly base his RFC determination on Harvey's daily activities.
Finally, Harvey argues that the ALJ improperly relied on his daily activities in determining that he could perform medium work. ECF No. 14 at 26-28. With regard to Harvey's daily activities, the ALJ noted:
The claimant's daily activities are consistent with his ability to perform simple, medium work. The claimant can care for himself independently; he can bathe, dress and feed himself. He does some light housework, he drives, he does some laundry, he can prepare his own meals, he goes to church and shopping in stores, he goes to family events, watches television and handles finances. Without significant limitations on his activities of daily living, I believe the claimant overstated the impact of his medically determinable impairments. Essentially, the claimant possesses the ability to perform the physical and mental activities necessary to perform the above residual functional capacity.
R.p. 27. Harvey argues that the ALJ's decision failed to acknowledge the extent to which he can actually perform these activities. Specifically, he argues that the ALJ failed to reconcile conflicting evidence that showed that Harvey had difficulty with some of the daily activities the ALJ listed, and further maintains that the ALJ provided no explanation as to how doing those activities translated to being able to perform medium work on a regular and consistent basis. ECF No. 14 at 27.
Indeed, Harvey points out that he testified to needing assistance from his wife with bathing. R.p. 44. When asked if he could dress himself, he testified that he could but only with, “[c]ertain clothes, ” noting that he “wear[s] a lot of what you can just pull on, and the shoes that you can slide on that don't tie.” R.p. 111. He explained that he could do some chores but “just when [he] feel[s] able to.” R.p. 111. He also reported that he used to prepare “more complete meals.” R.p. 320. And as far as shopping and getting together with others, Harvey explained that he needed to use a “buggy” to shop and that they “don't get together that much.” R.pp. 111-12.
When considering the intensity and persistence of a claimant's symptoms, such as pain, and determining the extent to which a claimant's symptoms limit his capacity for work, the regulations provide that an ALJ will consider relevant factors such as a claimant's “daily activities.” 20 C.F.R. § 404.1529(c)(3)(i). However, “[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which [he] can perform them.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis in original).
Here, Harvey correctly notes that the ALJ omitted certain qualifying language when listing Harvey's daily activities. The Fourth Circuit has held that merely listing a claimant's activities does not automatically equate to substantial evidence if those activities were “minimal daily activities” qualified by the claimant in ways that do not contradict claims of disabling pain. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 269-70 (4th Cir. 2017).
But, the ALJ's mere omission of qualifying language does not automatically necessitate remand under Brown. The relevant inquiry is whether the ALJ's decision is ultimately supported by substantial evidence. Thus, it comes down to whether the ALJ's reliance on other evidence besides Harvey's daily activities justified the credibility determination and, ultimately, the RFC. Here, unlike in Brown, the ALJ also relied on medical records (such as (1) unremarkable physical and mental examination findings, (2) unremarkable objective test results, and (3) Harvey's conservative treatment) that contradicted Harvey's allegations. R.pp. 22-29. Additionally, here, unlike in Brown, several medical opinions in the record contradict Harvey's subjective allegations of disabling limitations, including the opinions of Doctors Millender, Cannon, Callins, and Petzelt. See, e.g., R.p. 445 (noting “subjective complaints without objective evidence of low back pain and vertigo”); see also R.pp. 163-65, 167-68, 444-45, 448-49. Although the Court agrees that the ALJ's characterization of Harvey's daily activities could be viewed as deceiving, substantial evidence ultimately supports the ALJ's decision. See Henson v. Berryhill, No. 1: 15-cv-00123-RJC, 2017 WL 5195882, at *8 (W.D. N.C. Nov. 9, 2017) (rejecting a Brown based argument and finding that while “the ALJ did not accurately recount the limitations put forth on Plaintiffs daily activities, he nonetheless recounted medical evidence to support his conclusion that Plaintiffs testimony was not entirely credible”). Therefore, the Court recommends affirming on this issue.
IV. RECOMMENDATION
Because this Court was not “left to guess” at how the ALJ came to his RFC determination, the ALJ's decision should be affirmed. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (noting, in conducting an RFC analysis, an ALJ must identify both the evidence that backs his conclusion, and “build an accurate and logical bridge from [that] evidence to his conclusion.”). Ultimately, substantial evidence supports the ALJ's decision. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Accordingly, it is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this 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
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).