Opinion
C/A No. 9:19-3123-RMG-MHC
01-04-2021
Thomas J. Henry, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying his claims for Disability Insurance Benefits (DIB) under Title II and Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Plaintiff asserts there is not substantial evidence to support the ALJ's decision that he is not disabled or to deny his claim for benefits. He requests that the decision be reversed and remanded to the Commissioner for an award of benefits or alternatively remanded for additional proceedings. The Commissioner disagrees, arguing that the decision to deny benefits is supported by substantial evidence, and Plaintiff was properly found not to be disabled.
This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Commissioner's decision be reversed and remanded.
I. FACTUAL BACKGROUND AND MEDICAL EVIDENCE
Plaintiff was fifty-three years old at the time he alleges he became disabled (April 21, 2015) and fifty-seven years old at the time of the ALJ's decision. R.pp. 19, 37, 184, 204. He has a limited (tenth grade) education and past relevant work as a courier/delivery driver, automobile detailer, and driver. R.pp. 18-19, 43, 52-53, 222-226.
The medical evidence pertaining to his claim is as follows.
A. AnMed Hospitalization
Plaintiff was hospitalized at AnMed from April 21 to 24, 2015. Assessments included pneumonia, uncontrolled hypertension, leukocytosis secondary to pneumonia, hypoglycemia, obesity, acute renal insufficiency versus chronic kidney disease, and ongoing tobacco abuse. R.pp. 343-344, 347-348. Echocardiogram findings included mild to moderate concentric left ventricular hypertrophy, mild LV diastolic dysfunction, and moderately dilated left atrium. R.pp. 350-351.
B. AnMed Honea Path Family Practice
Throughout the relevant time period, Plaintiff's impairments were treated by providers at Honea Path Family Practice. Plaintiff received a follow-up examination for his pneumonia with family nurse practitioner (FNP) Stacey Branyon on April 30, 2015. His blood pressure was 198/98 and his weight was 310 pounds. Plaintiff was diagnosed with hypertension; diabetes mellitus, Type 2 (diabetes); a pulmonary nodule seen on imaging study; and hearing loss. R.pp. 321-325. On May 13, 2015, FNP Branyon noted that Plaintiff smoked tobacco every day and his blood pressure was 170/90. Plaintiff was assessed with diabetes, benign essential hypertension, a pulmonary nodule seen on imaging study, and community-acquired pneumonia. R.pp. 311, 314.
On December 2, 2015, Plaintiff's blood pressure was 194/100. His medications to treat his high blood pressure and diabetes were renewed, and he was referred to a pulmonary specialist. R.pp. 296-301. On December 16, 2015, Plaintiff's active problems included hypertension, cholesteatoma of both ears, bilateral cholesteatoma of middle ear and mastoid bilaterally, chronic obstructive pulmonary disease (COPD), chronic kidney disease (Stage II), conductive hearing loss, history of pneumonia, nicotine dependence, obesity, obstructive sleep apnea (OSA), perforation of the left tympanic membrane, pulmonary nodule, RBC microcytosis, and shortness of breath. FNP Branyon noted that Plaintiff's blood pressure control was poor and assessed anemia and benign essential hypertension. R.pp. 280-282.
In May and June 2015, pulmonologist Dr. Syed Malik at AnMed Pulmonary and Sleep Medicine evaluated Plaintiff's pulmonary nodule. He noted that Plaintiff was experiencing shortness of breath with exertion. A sleep study was conducted, and the potential benefits of CPAP therapy were discussed. A CT revealed a stable right middle lobe nodule for which follow up CT scans were recommended. Dr. Malik diagnosed Plaintiff with COPD, OSA, nicotine dependence, and a stable pulmonary nodule. R.pp. 469-500.
On March 3, 2016, Dr. Kent Jenkins examined Plaintiff for complaints of a sore throat, malaise, fatigue, hoarseness, earache, red eyes, eye discharge, and high blood pressure. Diagnoses included primary hypertension and a subconjunctival hemorrhage of Plaintiff's right eye. R.pp. 675-678. Dr. Branyon assessed Plaintiff with shortness of breath, benign essential hypertension, anemia, unspecified type, diabetes, RBC microcytosis, abnormal EKG, and obesity on March 9, 2016. Further testing and lab work were ordered. R.pp. 423-426, 665-670. On March 23, 2016, Plaintiff was seen by FNP Branyon for complaints of an abscess under his right arm, shortness of breath, and lower extremity edema from cardiovascular disease. Excision and drainage of an abscess under Plaintiff's right arm was performed. R.pp. 659-664. FNP Branyon saw Plaintiff for follow-up of his primary hypertension with comorbid illnesses of left ventricular hypertrophy and nephropathy on May 5, 2016. R.pp. 653-658.
Plaintiff was evaluated and treated for high blood sugar on June 16, 2016. Plaintiff complained of hearing loss in his left ear, lower extremity edema, and shortness of breath. FNP Branyon's assessments included pernicious anemia, diabetes, benign essential hypertension, and a pulmonary nodule. R.pp. 645-652.
On October 13, 2016, Plaintiff complained of leg numbness when he sat or stood for a long period of time, numbness on one side of his body when he laid down, worsening depression and anxiety, and difficulty with activities of daily living. FNP Branyon noted that Plaintiff's hearing loss was getting worse with loss of balance and dizziness. Because Plaintiff could not afford to go to the Medical University of South Carolina (MUSC) where he was treated previously (discussed further below), he was referred to another provider to evaluate his worsening hearing loss and balance issues/vertigo. R.pp. 639-644.
On April 14, 2017, FNP Branyon's review of systems indicated that Plaintiff was positive for fatigue/malaise and shortness of breath, and during physical examination she noted spinal tenderness. Lasix was started for Plaintiff's shortness of breath and edema. R.pp. 603-620. On June 26, 2017, FNP Branyon noted that Plaintiff was experiencing increased shortness of breath, peripheral neuropathy as a diabetic complication; anxiety, headaches, malaise/fatigue, peripheral edema, and shortness of breath as associated symptoms of hypertension; and fatigue and headaches associated with a B-12 deficiency. R.pp. 577-586. On July 24, 2017, FNP Branyon administered a B-12 injection for Plaintiff's pernicious anemia. R.pp. 567-576.
On January 24, 2018, Plaintiff reported aching pain in his left leg and ankle after falling at home the prior week. FNP Branyon noted that Plaintiff's sleep apnea was untreated because Plaintiff could not afford a CPAP machine. Physical examination revealed that Plaintiff had edema (left lower leg swelling) and spine and left knee tenderness. There was an abrasion with redness in his left knee area. Doxycycline was started for the cellulitis in Plaintiff's leg. R.pp. 539-549.
On April 24, 2018, Plaintiff complained to FNP Branyon about seven out of ten severe pain in his left hand, fatigue and malaise/fatigue, shortness of breath, back pain, joint swelling, and myalgia, Physical examination revealed continued left lower leg swelling, left knee and spine tenderness, the use of a cane with painful gait, and anxiousness. Furosemide (generic for Lasix) was prescribed twice a day for Plaintiff's edema and shortness of breath. R.pp. 587-595.
C. AnMed Health Cardiology
On March 28, 2016, Plaintiff reported to cardiologist Dr. Jeremy Parker that he had low energy and had to use a cane at times because of fatigue. Dr. Parker assessed Plaintiff with an abnormal EKG, hypertension, shortness of breath, coronary artery calcification, and dyslipidemia. R.p. 389. On April 21, 2016, an echocardiogram showed normal LV systolic function, grade 2 diastolic dysfunction, mildly dilated left atrium, and mildly dilated IVC. R.pp. 396-398, 420-423.
On April 28, 2016, advanced practice registered nurse (APRN) Sarah DeBlaey noted that Plaintiff continued to have exertion and fatigue as well as elevated blood pressure. A stress test was ordered, and Hydrochlorothiazide (HZTZ) was prescribed to treat Plaintiff's high blood pressure. R.pp. 382-388. A pharmaceutical stress procedure on May 2, 2016 revealed no evidence of Lexiscan induced myocardial ischemia, fixed defects from technical difficulties in the study, normal LV function, and a left ventrical ejection fraction of 54%. R.pp. 381, 394-395. On May 11, 2016, APRN DeBlaey assessed Plaintiff with shortness of breath, coronary artery calcification, hypertension, and dyslipidemia. R.pp. 377-380.
On November 14, 2016, Dr. Parker assessed Plaintiff with coronary artery calcification, dyslipidemia, benign essential hypertension, diabetes, anemia, diastolic dysfunction, and morbid obesity. R.pp. 534-537. In October 2017, Dr. Parker noted that Plaintiff's blood pressure was elevated, but thought it might be due to his upper respiratory infection with nasal congestion. Aspirin was added to Plaintiff's medications. R.pp. 502-533.
D. MUSC Health
Dr. Ted A. Meyer, the Director of the Cochlear Implant Program at MUSC Health, diagnosed Plaintiff with tympanic membrane retraction with cholesteatoma, left worse than right; and maximal conductive hearing loss on July 10, 2015. Dr. Meyer recommended left tympanomastoidectomy, the surgery was scheduled for August, and additional surgery was to be considered for Plaintiff's right ear after the left ear got healthier and Plaintiff's hearing improved. R.pp. 305-306. Plaintiff was unable to afford to have the ear surgery and it was not performed. R.p. 640.
On May 26, 2015, a CT of Plaintiff's temporal bone revealed: Bilateral total opacification of the mastoid air cells. Opacified right middle ear structure with tympanic membrane retraction or perforation. Partial middle ear opacification on the left. Epitympanic spaces are opacified with bone changes on the right. R.p. 439.
E. Consultative Examination - Dr. Millender
On March 19, 2016, Dr. Catherine M. Millender performed a consultative examination. Plaintiff reported the ability to drive, dress himself, and independently perform his activities of daily living. He stated that he stopped working in August 2014 because of pneumonia and shortness of breath. Dr. Millender diagnosed Plaintiff with hearing loss, shortness of breath, hypertension, kidney disease, and diabetes. R.pp. 367-370.
II. APPLICABLE LAW
A. Scope of Review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. 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. 2007) (internal quotation marks omitted). Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence."Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that substantial evidence "means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion") (internal quotation marks omitted).
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Hays, 907 F.2d at 1456. Thus, in "assessing whether there is substantial evidence, the reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the agency." Walls, 296 F.3d at 290 (internal quotation marks omitted). "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Sequential 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 that prevents 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(d), 1382c(a)(3)(H)(i); 20 C.F.R. § 416.905(a).
The Social Security Administration (SSA) has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). The five steps are: (1) whether the claimant is engaging in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment(s) meets or equals an impairment set forth in the Listings of Impairments, 20 C.F.R. Part 404, Subpt. P., App. 1; (4) whether the impairment(s) prevents the claimant from returning to his past relevant work; and, if so, (5) whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018).
It is the claimant's duty both to produce evidence and prove he is disabled during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). To satisfy this burden at step five, the Commissioner must prove, "by a preponderance of the evidence, that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's residual functional capacity, age, education, and work experience." Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016) (internal quotation marks omitted). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). The ALJ is to develop the record and where the ALJ "fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded." Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
III. ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for DIB and SSI on December 14, 2015, alleging disability beginning September 1, 2014, because of essential hypertension, chronic stage two kidney disease, type 2 diabetes, hearing loss in his left ear, obesity, a pulmonary nodule, shortness of breath, and nicotine dependency. R.pp. 10, 184, 186, 209. He subsequently amended his alleged onset date to April 21, 2015. R.pp. 12, 36, 202. Plaintiff's claims were denied initially and upon reconsideration, and Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). A hearing, at which Plaintiff and a vocational expert (VE) testified, was held on May 22, 2018. R.pp. 33-61. The ALJ thereafter denied Plaintiff's claims in a decision issued September 11, 2018, finding that Plaintiff was not disabled from his amended alleged onset date through the date of the decision. R.pp. 10-20.
After a review of the evidence and testimony in the case, the ALJ determined at step two that Plaintiff suffers the "severe" impairments of coronary artery disease, chronic bronchitis, COPD, OSA, hearing loss, and obesity. R.p. 12. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the Listing of Impairments. R.pp. 13-14.
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
The ALJ determined that, despite these severe impairments, Plaintiff nevertheless retained the residual functional capacity (RFC) to perform medium work with limitations that he could only occasionally climb ladders, ropes, and scaffolds; frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; frequently have exposure to extreme heat, humidity, pulmonary irritants (such as fumes, odors, dust, and gases), and workplace hazards; and perform no work involving telephone use. R.p. 14.
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. §§ 404.1567(c), 416.967(c).
"If the claimant fails to demonstrate [he] has a disability that meets or medically equals a listed impairment at step three, the ALJ must assess the claimant's [RFC] before proceeding to step four, which is 'the most [the claimant] can still do despite [his] [physical and mental] limitations [that affect [his] ability to work].'" Lewis v. Berryhill, 858 F.3d 858, 861-62 (4th Cir. 2017) (quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)); see also 20 C.F.R. § 404.1520(e) ("If your impairment(s) does not meet or equal a listed impairment, we will assess and make a finding about your [RFC] .... We use our [RFC] assessment at the fourth step of the sequential evaluation process to determine if you can do your past relevant work [] and at the fifth step of the sequential evaluation process [] to determine if you can adjust to other work....).
At step four, the ALJ obtained testimony from the VE and found that Plaintiff was able to perform his past relevant work at the composite job of courier/delivery driver, automobile detailer, and driver. R.pp. 18; 52-54. The ALJ also found, in the alternative, at step five Plaintiff could perform other jobs existing in significant numbers in the national economy (noting the representative occupations of assembler, DOT code 709.684-014; hand packer, DOT code 920.587-018; and machine tender, DOT code 616.685-058) and was, therefore, not disabled. R.pp. 19-20.
"In the event the main duties of past relevant work can only be described by considering multiple DOT occupations, a [claimant] may be considered to have performed a composite job." Shealy v. Colvin, No. CIV.A. 8:13-2383-RMG, 2015 WL 467726, at *12 (D.S.C. Feb. 4, 2015). Composite jobs are jobs in which no single DOT job code would be accurate alone, but rather have elements of more than one DOT job code. SSR 82-61, 1982 WL 31387, at *2. Pursuant to the Administration's Program Operations Manual System (POMS), when comparing a claimant's RFC to a composite job as the claimant performed it, the ALJ "must find the claimant capable of performing the composite job only if he or she can perform all parts of the job." POMS DI § 25005.020B; see also Shealy, 2015 WL 467726, at *13 (noting that an ALJ may not find a claimant capable of performing past relevant work by dividing the demands of a composite job into two separate jobs and finding the claimant capable of performing the less demanding of the two jobs).
Plaintiff appealed the ALJ's decision to the Appeals Council, which denied Plaintiff's request for review on September 16, 2019, thereby making the determination of the ALJ the final decision of the Commissioner. R.pp. 1-6. This action followed.
IV. DISCUSSION
Plaintiff asserts that the ALJ erred by finding that Plaintiff's past relevant work was performed at the medium exertional level when it was a composite job that included work at the heavy exertional level, in failing to give adequate weight to the opinions of Plaintiff's treating physician and an opinion from the consultative examiner, and in failing to comply with the requirements of SSR 02-1p in evaluating the severity of Plaintiff's morbid obesity in combination with his other multiple impairments.
The ALJ made an alternative finding that, based on the RFC restrictions as found in the decision, there are other jobs (which the VE testified were unskilled) existing in the national economy that Plaintiff can perform. R.pp. 14, 19, 53-54. Thus, even if the Court were to find that the ALJ erred in finding that Plaintiff could perform his past relevant work, it may be that any error is harmless, as the ALJ also proceeded to step five, obtained testimony from the VE, and found that Plaintiff is also not entitled to disability benefits because there are other jobs in the national economy that Plaintiff can perform with his limitations. R.pp. 19-20, 53-55). See Mickles v. Shalala, 29 F.3d 918, 925-926 (4th Cir. 1994) (finding the ALJ's error harmless when the ALJ would have reached the same result notwithstanding an error in his analysis); Davis v. Astrue, No. 07-231, 2008 WL 540899, at *3 (D.S.C. Feb. 22, 2008) (recognizing harmless error analysis).
A. Opinion Evidence
Plaintiff asserts that the ALJ erred in failing to give adequate weight to the opinions of treating physician Dr. James A. Smith that essentially concluded Plaintiff would be unable to perform any work. He also contends that the ALJ failed to give adequate weight to consultative examiner Dr. Millender's opinion that Plaintiff would not be able to sustain full-time work.
On May 18, 2016, Dr. Smith, a physician at AnMed Honea Path Family Practice, and FNP Branyon completed a Physician Questionnaire (May 2016 opinion) in which they noted that Plaintiff had weakness, exertional dyspnea, paroxysmal nocturnal dyspnea, untreated sleep apnea, peripheral edema, loss of endurance/exercise intolerance, chronic fatigue, shortness of breath, and edema. They opined that Plaintiff could sit more than two hours at one time; stand for thirty minutes at one time; sit and stand/walk for less than two hours in an eight-hour working day; rarely climb stairs; walk no city blocks without rest; and never twist, stoop, crouch/squat, or climb ladders. "No work" was written on the form. R.pp. 401-404.
Where a licensed physician adopts the opinions made by a non-acceptable medical source, such as a nurse practitioner, the opinions of the non-acceptable source become those of the doctor. See Palmer v. Colvin, No. 5:13cv126, 2014 WL 1056767, at *2 (E.D.N.C. Mar. 17, 2014) ("[I]f the facts of treatment show the primary caregiver is a non-acceptable medical source, such as a nurse practitioner, and a doctor adopts the findings and information about the patient and is engaged in the treatment, the nurse practitioner's evaluation becomes the report of the doctor."); cf. Russell v. Colvin, No. 5:14-CV-00045, 2015 WL 4484891, at *6-7 (W.D. Va. July 22, 2015) (explaining, in the context of determining which standard to apply to a medical-source opinion signed by both a physician and his physician assistant, that a doctor who never examined the claimant was a treating physician "[c]onsidering the nature of the working relationship between [the] physician and his physician assistant," who treated the claimant more regularly, "and [the doctor's] documented review of [the claimant]'s treatment notes over an extensive period").
On May 18, 2018, Dr. Smith and FNP Branyon completed another questionnaire (May 2018 opinion) in which they listed Plaintiff's signs and symptoms as exertional dyspnea, peripheral edema, loss of endurance/exercise intolerance, shortness (of breath), and fatigue. Plaintiff's primary diagnoses were listed as diabetes, COPD, sleep apnea, and hypertension. These providers indicated that Plaintiff's pain and other symptoms would frequently interfere with the attention and concentration needed to perform even simple tasks. R.pp. 680-681. They opined that Plaintiff could sit for more than two hours at a time, but was unable to stand for 30 minutes at a time, could stand/walk less than two hours a day, could sit for about four hours a day, and could only walk for five minutes at a time because of shortness of breath. Additionally, it was noted that Plaintiff would be required to take unscheduled breaks during an eight-hour work day; could not stand continually because of chronic fatigue and shortness of breath; should elevate his legs to waist level while sitting; could occasionally lift ten pounds; could never lift more than twenty pounds because of fatigue and shortness of breath; could occasionally look down, turn his head, look up, and hold his head in a static position; could rarely twist or climb stairs; could never stoop, crouch/squat, or climb ladders; and likely would miss more than four days of work per month. It was noted that Plaintiff needed a functional capacity examination. R.pp. 680-681.
A treating physician's opinion is ordinarily entitled to great weight, see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996) (Noting importance of treating physician opinion), is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. § 404.1527. See SSR 96-2p, 1996 WL 374188. Under these regulations, a treating source's opinion on the nature and severity of an impairment is entitled to "controlling weight" where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Further, the ALJ is required to provide an explanation in the decision for what weight is given a treating source's opinion and, if rejected, why it was rejected. See 20 C.F.R. § 404.1527(c). The Regulations provide that, if a treating source's opinion is not accorded controlling weight, the ALJ is required to consider "all of the following factors in deciding the weight we give to any medical opinion": (1) examining relationship ("[g]enerally, we give more weight to the opinion of a source who has examined you than the opinion of a source who has not examined you"); (2) treatment relationship, including length of treatment relationship, frequency of examination, and the nature and extent of the treatment relationship; (3) supportability ("[t]he more a medical source presents relevant evidence to support an opinion ... the more weight we will give that opinion"); (4) consistency; (5) specialization; and (6) other factors. Id.
For claims filed after March 27, 2017, the regulations have been amended, and several of the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." 20 C.F.R. § 416.920c (2017). As the claims in the present case were filed before March 27, 2017, Plaintiff's claims have therefore been analyzed pursuant to the treating physician rule set out above. As such, references in this report and recommendation are to the prior versions of the regulations, unless otherwise specified.
The ALJ's decision to give limited weight to the May 2016 and May 2018 opinions of treating physician Dr. Smith is not supported by substantial evidence. The ALJ discounted Dr. Smith's May 2016 opinion for two reasons, that it was not consistent with the medical evidence of record (discussed further below) and was rendered at a new patient visit apparently based on Plaintiff's reported limitations. R.p. 17. However, the records indicate that Plaintiff has been treated at Honea Path Family Practice (where Dr. Smith and FNP Branyon worked) since at least April 30, 2015. R.pp. 321-326. Additionally, in response to the question of frequency and length of contact, it was noted "New Patient 4/30/15" (R.p. 401), which was more than a year prior to the May 2016 opinion.
The ALJ stated that she discounted Dr. Smith's May 2018 opinion because it was not consistent with medical evidence of record, Dr. Smith noted that Plaintiff needed a formal functional evaluation, and Dr. Smith wrote that his suggested limitations were "a guess." However, because the "a guess" notation may only apply to the section where the notation is placed (as to the percentage of time during an eight-hour workday that Plaintiff could use his hands/fingers/arms for certain functions), it is unclear that this was a proper basis to give the entire opinion limited weight.
Although the ALJ stated she gave limited weight to Dr. Smith's opinions because they are allegedly not consistent with the medical evidence of record, there is no explanation as to what is not consistent. The Commissioner contends there is evidence in the record that is inconsistent with the opinions of Drs. Smith and Millender. See Commissioner's Brief, ECF No. 14 at 11-12. But the Commissioner's examples appear to be post-hoc rationalizations, as the ALJ did not state that she discounted Dr. Smith's opinions based on the arguments asserted by the Commissioner. No actual comparison, discussion, or analysis of the records to these opinions was made explaining why the ALJ determined the opinions were generally invalid and entitled to limited weight, such that it simply is not clear from the ALJ's cursory dismissal of these opinions whether the decision to give these opinions "limited weight" is supported by substantial evidence. See 20 C.F.R. § 416.927(c)(2) (requiring ALJ to give "good reasons" for weight given to treating source's opinion); see also Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D.N.C. Dec. 20, 2012) (noting that the ALJ need not discuss all the factors, but "must give 'good reasons' for the weight assigned to a treating source's opinion.") (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and SSR 96-2p, 1996 WL 374188, at *5). Therefore, remand is required. See Mascio v. Colvin, 780 F.3d at 636 (noting that "remand is necessary" where the court is "left to guess [at] how the ALJ arrived at his conclusions"); cf. Laws, 368 F.2d at 642 (Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion").
Moreover, even if the ALJ properly determined that Dr. Smith's opinions are not entitled to controlling weight, the ALJ erred by failing to apply the factors listed in 20 C.F.R. § 404.1527(c) to decide how much weight these opinions should be accorded. "[A]n express discussion of each factor is not required as long as the ALJ demonstrates that [s]he applied the § 404.1527[c] factors and provides good reasons for [her] decision." Hendrix v. Astrue, No. CIV.A1:09-1283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010). Here, it is unclear from the decision that the ALJ applied all of the factors and provided good reasons for her decision.
Further, Dr. Smith's opinions appear to be supported in part by the consultative examination and opinion of Dr. Millender. In March 2016, Dr. Millender opined that Plaintiff could hold a conversation, respond appropriately to questions, sit for a full day of work, and carry out and remember instructions. However, Dr. Millender found that Plaintiff's ability to walk/stand and lift/carry for a full workday was limited because of his shortness of breath. R.p. 370.
As to the consultative examiner's opinion, the law applicable at the time of the ALJ's decision provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). In weighing these opinions, the ALJ is instructed to apply the same factors (as discussed above, these factors include the examining relationship, treatment relationship, supportability, consistency, specialization, and other relevant factors) applicable to treating medical sources to all medical opinions, including those from consultative or one-time examiners. 20 C.F.R. § 404.1527(c). More weight is generally given to the opinions of an examining source than a non-examining one. Id. Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id.
The ALJ gave Dr. Millender's opinion limited weight because it was based on Plaintiff's subjective complaints and was essentially a one-time examination. R. p. 18. However, the opinion appears to be at least somewhat consistent with the opinions of Dr. Smith, especially because Dr. Millender thought Plaintiff's ability to walk and/or stand for a full workday and to lift/carry objects was likely to be limited. It is unclear from the decision that the ALJ properly considered all the factors under 20 C.F.R. § 404.1527 in evaluating Dr. Millender's opinion.
If Plaintiff was restricted to light or less work based on these restrictions, he could not perform his past relevant work which the ALJ classified as medium. Additionally, it appears that the ALJ conceded that, if Plaintiff was restricted to light or less work, Plaintiff would be disabled under the medical-vocational guidelines at the time Plaintiff turned 55 (categorized as advanced age under the guidelines). See R.p. 59.
After discounting the opinions of the treating physician and consultative physician, the ALJ instead afforded great weight to the opinions of the state agency medical consultants. R.p. 18. On April 27, 2016, state agency physician Dr. Sherrial Summers opined that Plaintiff could perform medium work with limitations of frequently climbing ramps/stairs, balancing, stooping, kneeling, crouching, and crawling; occasionally climbing ladders/ropes/scaffolds; no work involving telephone use; and avoidance of concentrated exposure to heat, humidity, fumes, odors, dusts, gases, and poor ventilation. R.pp. 66-68. On September 17, 2016, state agency physician Dr. Stephen Burge also opined that Plaintiff could perform medium work with the same limitations as found by Dr. Summers. R.pp. 92-94.
The RFC found by the ALJ appears to adopt the limitations found by these state agency physicians. See R.p. 14.
In giving the medical consultants' opinions great weight, the ALJ merely stated that "they were consistent with and supported by the medical evidence of record." R.p. 18. As recently noted by the Fourth Circuit, an ALJ's "merely conclusory explanation that the medical consultants' opinions were 'generally consistent with the other evidence of record'" falls short of the requirement that an ALJ "must provide a narrative discussion of how specific evidence supports the 'varying degrees of weight' assigned to different opinions." Arakas v. Comm'r, Soc. Sec. Admin., No. 19-1540, 2020 WL 7331494, at *20 (4th Cir. Dec. 14, 2020) (quoting Monroe v. Colvin, 826 F.3d at 190).
Additionally, the decision to discount the opinions of the treating physician in favor of the medical consultant opinions may not be fully supported because the April and September 2016 opinions of the medical consultants are dated almost two years prior to Dr. Smith's May 2018 opinion. Thus, the medical consultants did not consider evidence after September 2016, and did not consider Dr. Smith's May 2018 opinion. Simply because a state agency expert opinion occurred before other evidence in the record does not render the opinion unreliable. Price v. Comm'r, Soc. Sec. Admin., No. 2:15-CV-4339-RBH-MGB, 2016 WL 7744395, at *8 (D.S.C. Dec. 29, 2016), report and recommendation adopted, 2017 WL 131843 (D.S.C. Jan. 13, 2017) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)) (recognizing that a delay always exists between the consultant's report and the ALJ's decision). Similarly, treating physician opinions that occur after the state agency expert's opinion do not necessarily warrant greater weight. Geiger v. Astrue, No. 2:11CV00055, 2013 WL 317564, at *7 (W.D. Va. Jan. 27, 2013); Caudill v. Astrue, No. 2:11CV00034, 2012 WL 4458209, at *6 (W.D. Va. July 26, 2012). However, a significant change in a plaintiff's condition following the consultant's opinion may reasonably alter its validity. See Hampton v. Colvin, No. 1:14-CV-24505, 2015 WL 5304294 (S.D.W. Va. Aug. 17, 2015), report and recommendation adopted, No. CV 1:14-24505, 2015 WL 5304292 (S.D.W. Va. Sept. 9, 2015).
Here, the medical records indicate changes in Plaintiff's condition after the time of the medical consultant opinions which may constitute significant change. For example, on October 13, 2016, Plaintiff complained to FNP Branyon of leg numbness when he sat or stood for long periods of time and about worsening hearing loss with dizziness and loss of balance. FNP Branyon noted that Plaintiff's gait and station were abnormal with poor balance. R.pp. 640, 644. Lasix was added to help treat Plaintiff's shortness of breath and edema in April 2017. R.p. 604. On June 26, 2017, Plaintiff reported increased shortness of breath, for which additional medication was prescribed. Peripheral neuropathy was noted as a diabetic complication. R.pp. 577-578. In April 2018, more than three months after a fall, Plaintiff continued to have left knee tenderness and was noted to use a cane with painful gait. R.pp. 93. Thus, it is unclear that the ALJ's decision to give great weight to the medical consultant opinions is supported by substantial evidence.
The ALJ's errors do not necessarily mean that Plaintiff is disabled. However, these errors undermine the stated bases for the ALJ's conclusions as set forth in her decision, thereby requiring remand for a proper evaluation of the case record. Thus, it is recommended that this action be remanded to the Commissioner to evaluate the opinions of Plaintiff's treating physician Dr. Smith and the consultative opinion of Dr. Millender in light of all the evidence and in accordance with controlling law. With respect to the remainder of Plaintiff's claim of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D. Va. 2002) (On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).
B. Remand Versus Reversal:
Plaintiff contends that this action should be remanded to the Commissioner for an award of benefits. "Whether to reverse and remand for an award of benefit or remand for a new hearing rests within the sound discretion of the district court." Smith v. Astrue, No. 10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)); see also Evans v. Heckler, 734 F.2d 1012, 1015 (4th Cir. 1984). When "[o]n the state of the record, [plaintiff's] entitlement to benefits is wholly established," reversal for award of benefits rather than remand is appropriate. Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980). "The Fourth Circuit has explained that outright reversal—without remand for further consideration—is appropriate under sentence four 'where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose'" and "where a claimant has presented clear and convincing evidence that he is entitled to benefits." Goodwine v. Colvin, No. 3:12-2107-DCN, 2014 WL 692913, at *8 (D.S.C. Feb. 21, 2014) (citing Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974)); Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 333 (4th Cir. 1992). An award of benefits is appropriate when "a remand would only delay the receipt of benefits while serving no useful purpose, or a substantial amount of time has already been consumed." Davis v. Astrue, C/A No. 07-1621-JFA, 2008 WL 1826493, at *5 (D.S.C. Apr. 23, 2008) (citing Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982)). "On the other hand, remand is appropriate 'where additional administrative proceedings could remedy defects....'" Id. (quoting Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)). Remand, rather than reversal, is required, however, when the ALJ fails to explain her reasoning and there is ambivalence in the medical record, precluding a court from "meaningful review." Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). Pursuant to the above standards, remand for further proceedings, rather than outright remand, is recommended as there is not clear and convincing evidence that Plaintiff is entitled to benefits and additional proceedings may remedy defects in this case.
RECOMMENDATION
It is, therefore, recommended that the decision of the Commissioner be REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) for further administrative review.
The parties' attention is directed to the important notice on the next page.
/s/_________
Molly H. Cherry
United States Magistrate Judge January 4, 2021
Charleston, South Carolina
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).