Opinion
2:23-cv-00246-JD-MGB
01-17-2024
JARROD R.,[1]Plaintiff, v. MARTIN O'MALLEY,[2]Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Jarrod R. (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned RECOMMENDS that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 51 years old on his date last insured, December 31, 2022. (R. at 66.) He alleges a disability onset date of February 21, 2020. (R. at 66.) Plaintiff claims disability due to a torn rotator cuff in his left arm, and inability to raise his arms over his head. (R. at 67.) Plaintiff has past relevant work as a maintenance machinist. (R. at 37.)
Plaintiff filed an application for DIB on February 21, 2020. (R. at 86, 88.) His application was denied initially and upon reconsideration. (R. at 86, 88.) After a telephonic hearing before an Administrative Law Judge (“ALJ”) on June 28, 2022, the ALJ issued a decision on October 4, 2022, in which the ALJ found that Plaintiff was not disabled. (R. at 12-65.) The Appeals Council denied Plaintiff's request for review, (R. at 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
(2) The claimant has not engaged in substantial gainful activity since February 21, 2020, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: osteoarthritis, right rotator cuff repair status-post right shoulder arthroscopy, rotator cuff syndrome, right acromioclavicular degenerative joint disease, grade I-III chondromalacia of the glenohumeral joint, obstructive sleep apnea, attention deficit disorder / attention deficit hyperactivity disorder, diabetes mellitus, anxiety, and depression (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except lift or carry twenty pounds occasionally, ten pounds frequently; stand or walk for six hours out of an eight-hour workday and sit for six hours out of an eight hour workday. The claimant can perform frequent, but not continuous, postural activities, but avoid workplace hazards. The claimant can perform frequent, but not continuous, use of the bilateral upper extremity for pushing, pulling,
operating hand controls, as well as reaching in all directions. The claimant can occasionally use the right dominant upper extremity for overhead reaching. The claimant is able to sustain attention and concentration for two-hours at a time, but cannot perform any work requiring production rate or demand pace. The claimant can understand, remember, and carry out simple, but uninvolved instructions and perform routine tasks. The claimant must avoid environments with constant changes in a routine setting. The claimant can have frequent, but not continuous contact or interactions with coworkers and supervisors, and only occasional interactions with the public.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on July 17, 1971 and was 48 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563).
(8) The claimant has at least a high school education (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from February 21, 2020, through the date of this decision (20 CFR 404.1520(g)).(R. at 17-39.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ committed reversible error by failing to support her residual functional capacity (“RFC”) determination with substantial evidence. (Dkt. No. 10 at 20.) More specifically, Plaintiff claims that “the ALJ's finding that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently [] does not find[] support[] from any opinion evidence,” and that the ALJ failed to provide any “evidence-based discussion” supporting this limitation. (Id. at 22.) Plaintiff further claims that the ALJ improperly declined to accept a consultative examiner's recommendation that Plaintiff should be limited to “a small group environment with family, supportive peers” without discussing her reasons for doing so. (Id. at 23.) Plaintiff contends that these errors cannot be considered harmless because “the distinction between finding [Plaintiff] limited to light work and being limited to sedentary work or less is pivotal to the outcome of this case” because “a finding of limitation to sedentary work coupled with his age and education, would direct a finding of ‘disabled' under the Medical-Vocational Grid Rule 201.14.” (Id. at 22-23.)
In response, the Commissioner argues that the ALJ's decision-including her RFC analysis-is supported by substantial evidence and free from legal error. (Dkt. No. 11.) For the reasons discussed below, the undersigned agrees with Plaintiff. The undersigned therefore RECOMMENDS that that the decision be REVERSED, and that this case be REMANDED for further proceedings in accordance with this Report and Recommendation.
I. Legal Standard
A claimant's RFC, which represents “the most [he] can still do despite [his] limitations,” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(1), (a)(3); see also Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of his own limitations. 20 C.F.R. § 404.1545(a)(3).
Social Security Ruling 96-8p further requires that an ALJ's “RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (noting that the ALJ “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved”); see also Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (explaining that “the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion”); Dowling, 986 F.3d at 387 (explaining that every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [ ] the evidence” that supports it”). Thus, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311.
II. ALJ's RFC Determination
In forming Plaintiff's RFC, the ALJ began by considering Plaintiff's hearing testimony. (R. at 28.) The ALJ noted, inter alia, that Plaintiff reported a history of four surgeries on his right shoulder and a recent MRI indicating that his left shoulder was “bad.” (R. at 28.) The ALJ also noted Plaintiff's complaints of chronic shoulder pain and his reported inability to lift a gallon of milk. (R. at 28.) The ALJ then described the objective and other medical evidence before concluding that Plaintiff could perform light work with additional limitations, including “lift[ing] and carrying] twenty pounds occasionally, and ten pounds frequently.” (R. at 28-37.)
Relevant to Plaintiff's ability to “lift and carry twenty pounds occasionally, and ten pounds frequently,” the ALJ described a November 24, 2020 examination by consultative examiner Sushil K. Das, M.D., in which Dr. Das concluded that Plaintiff could lift more than the three to four pounds to which Plaintiff alleged he was limited. (R. at 29.) The ALJ also described a September 18, 2020 evaluation by consultative examiner Mark Coe, Ph.D., during which Plaintiff reported “difficulty performing tasks that require heavy lifting.” (R. at 31.) The ALJ further noted prior administrative medical findings and state agency consultative opinions which suggested that Plaintiff was capable of lifting more than three to four pounds, and that he would be able to perform work at the medium level of exertion. (R. at 33-35.)
The ALJ also described examination records from an April 4, 2022 examination performed by Jerry Barron, M.D., an orthopedic surgeon. (R. at 30.) The ALJ recounted this evidence as follows:
[O]n April 4, 2022, Jerry Barron, M.D., evaluated the claimant due to his continued complaints of right shoulder pain. Although disability is an issue left to the purview of the Commissioner, he opined that the claimant could not return to work and may not be employable based on the current health position of his right shoulder. Given the claimant's physical exam and history, Dr. Barron explained to the claimant that a left shoulder MRI was warranted for evaluation of a possible rotator cuff tear or labral injury and once obtained, the claimant would be re-evaluated to determine definitive treatment. Significantly, the claimant was advised to ice and heat for comfort, but he had [not] been prescribed any medications and no specific work-related functional restrictions or limitations were assigned. Dr. Barron noted that the claimant, who was a 50-year-old male was status post right shoulder arthroscopy, revision massive rotator cuff repair, glenohumeral chondroplasty and labral debridement surgery performed on November 7, 2019. He noted that the claimant had a massive non-repairable cuff tear and osteoarthritis and continued to have pain and stiffness. He also noted that the claimant reported an inability to flex or abduct his shoulder past 90 degrees and that the claimant experiences constant, achy pain which kept him up at night. The claimant also reported that he was worried that he had torn his rotator cuff on the side. The records also reflected that the claimant could not tolerate cortisone because he was a diabetic and it raised his blood sugar over 600. Review of all systems was negative except for the claimant's report of shoulder pain. Upon physical examination, the claimant appeared his stated age and was well-nourished. The claimant ambulated without a limp. The
record demonstrates no muscle atrophy was noted of the left or right shoulder. Range of motion of the left shoulder revealed forward flexion was from zero to 140 degrees.... His motor strength was decreased bilaterally. There was diffuse tenderness on the left. Sensory was intact to light touch bilaterally. There was bilateral weakness with rotator cuff resistance. Additionally, x-rays of the shoulders revealed osteoarthritis. Dr. Barron formed the diagnostic impression of the bilateral shoulders revealed right shoulder pain, unspecified chronicity. (Exhibit 24F).(R. at 30.)
Later in the RFC determination, the ALJ discounted this evidence. (R. at 30.) Specifically, she explained:
Dr. Barron's opinions were expressed in generality with no specificity as it related to how much claimant could lift, carry, push, or pull, what was the extent of his range of motion, or the like. As indicated by Dr. Barron, it was expected that claimant would be able to return to light or sedentary work. (Ex. 3F). Again, [Plaintiff's] impairments are severe, but I do not find that he is disabled from all work. The consultative examination of claimant in November 2020 is the most recent physical assessment of claimant's functional abilities, and as predicted by the earlier treatment records, he continued to have some pain and limited range of motion, but was not disabled and would be able to perform some basic work.(R. at 32.) The ALJ further noted:
The undersigned has additionally considered the other objective medical findings and medical opinion of Dr. Jerry Barron in Exhibits 3F and 17F. While the undersigned finds his objective physician examination findings are partially persuasive, the undersigned declined to consider his medical opinion regarding the claimant's ability to work, because disability is an issue left to the purview of the Commissioner. Moreover, the undersigned finds that treatment records and the medical opinion of Dr. Das do not indicate that claimant's impairments are as severe and disabling as alleged. At best, the undersigned finds Dr. Barron['s] medical opinion is vague, speculative, and prone to the inherent limitations of the claimant's reports. The disparity between the reported symptoms and the objective evidence is such that the allegations are not fully supported.(R. at 37.) The ALJ continued on to explain that the medical opinions of Dr. Coe and Dr. Das were most persuasive, and that those opinions supported his ultimate RFC determination. (R. at 35-37.)
III. Analysis
As noted, Plaintiff takes issue the ALJ's finding that he can “lift and carry twenty pounds occasionally and ten pounds frequently,” asserting that this limitation is not supported by substantial evidence. (Dkt. No. 10.) The undersigned agrees. Although the ALJ referenced certain evidence as support for this limitation, she improperly ignored other evidence without explanation, and did not accurately recount the record as a whole. (R. at 33-35.) Accordingly, the undersigned must recommend that the decision be reversed.
For example, when describing the record evidence, the ALJ conflates a 2017 opinion from Dr. Barron with opinion and examination findings provided by Dr. Barron in 2022. (R. at 37, 28283, 1118-20.) The ALJ claims that Dr. Barron indicated “it was expected that claimant would be able to return to light or sedentary work,” (R. at 32), but the ALJ fails to note that Dr. Barron provided this opinion in 2017 (before the relevant period), and that such opinion was dependent on the outcome of Plaintiff's surgery, (R. at 282). Following his April 2022 examination of Plaintiff, Dr. Barron ordered an MRI and opined that Plaintiff “continues to have right shoulder pain,” “cannot return to work,” and “may not be employable based on his current health position from his right shoulder.” (R. at 1118.) Although the ALJ was not required to give special significance to Dr. Barron's opinions regarding Plaintiff's ability to work, she was nonetheless required to consider and accurately recount the evidence supporting those opinions. See 20 C.F.R. § 404.1527(d). The ALJ instead cited only to Dr. Barron's 2017 opinion (without providing the full context of that opinion) when justifying her RFC determination, discounted Plaintiff's subjective statements, and ignored MRI evidence lending support to Dr. Barron's 2022 findings. (R. at 32-37.)
Further, the ALJ claimed that “the consultative examination of claimant in November 2020 is the most recent physical assessment of claimant's functional abilities,” and that “as predicted by the earlier treatment records, he continued to have some pain and limited range of motion, but was not disabled and would be able to perform some basic work.” (R. at 32.) In so stating, the ALJ ignored Plaintiff's May 2022 MRI, which indicated “[f]ull-thickness tearing of the rotator cuff involving supraspinatus and ventral infraspinatus tendons,” “[h]igh-grade long segment partial thickness tearing of the subscapularis tendon,” suspected “high-grade partial to full-thickness tearing” of the “long head biceps tendon,” “poorly characterized degeneration,” and “potential attritional tearing of the superior labrum.” (R. at 1121.) The ALJ provided no explanation for omitting these MRI findings (which are plainly relevant to Plaintiff's severe impairments). (R. at 27-37.) It is therefore unclear whether she considered them in making her decision. See Lewis, 858 F.3d at 869 (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”).
What is more, the MRI findings seem to inherently contradict the evidence on which the ALJ relied to support her conclusion that Plaintiff was capable of lifting and carrying “twenty pounds occasionally and ten pounds frequently.” (R. at 27-37.) As such, the undersigned cannot find that the ALJ's decision is supported by substantial evidence. See Woodbury v. Colvin, 213 F.Supp.3d 773, 778 (D.S.C. 2016) (“The touchstone for determining what evidence must be addressed is whether the evidence is so material that failing to address it would prevent the court from determining if the ALJ's decision was supported by substantial evidence.”); Seabolt v. Barnhart, 481 F.Supp.2d 538, 548 (D.S.C. 2007) (“The ALJ is not required to discuss every piece of evidence, but if he does not mention material evidence, the court cannot say his determination was supported by substantial evidence.”).
The ALJ's failure to note Plaintiff's May 2022 MRI findings is particularly concerning because these findings also seem to support Plaintiff's subjective complaints regarding his pain and ability to lift only three to four pounds. (R. at 1121.) When considering a plaintiff's subjective complaints about his impairments and symptoms, the ALJ must “examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” SSR 16-3p, 2017 WL 5180304, at *4 (S.S.A. Oct. 25, 2017) (emphasis added). Because the ALJ omitted any discussion of MRI evidence that supports Plaintiff's subjective complaints, the undersigned cannot conclude that this decision comports with the requirements of SSR 16-3p.
For these reasons, the undersigned finds that the ALJ's decision is not supported by substantial evidence and free from legal error. The undersigned therefore RECOMMENDS that the Commissioner's decision be REVERSED, and that this case be REMANDED for further consideration in accordance with this Report and Recommendation.
IV. Remaining Allegations of Error
Plaintiff also takes issue with the ALJ's failure to incorporate the consultative examiner's recommendation that Plaintiff would “likely work best in a small group environment with family, supportive peers given his anxiety in public.” (Dkt. No. 10.) The undersigned need not address this remaining allegation of error, as it may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (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). Nonetheless, the ALJ should, if necessary, also take into consideration Plaintiff's remaining allegation of error as part of the overall reconsideration of this claim upon remand.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).