Opinion
Civil Action 8:22-cv-02978-RMG-JDA
11-06-2023
John T., [1] Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In March 2016, Plaintiff filed an application for DIB alleging an onset of disability date of June 20, 2014. [R. 203-09.] Plaintiff also filed an application for SSI in August 2016. [R. 219-29.] The claims were denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 60-73, 76-89, 90-106, 109-24.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and on August 24, 2018, ALJ Ronald Sweeda conducted a de novo hearing on Plaintiff's claims. [R. 36-58.]
The ALJ issued a decision on December 24, 2018, finding Plaintiff not disabled under the Social Security Act (the “Act”). [R. 15-34.] Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 4-9.] Plaintiff filed an action for judicial review on February 25, 2020, and the matter was remanded to the Commissioner for the ALJ's failure to provide an adequate explanation for rejecting the testimony of Plaintiff regarding the intensity, persistence and limiting effects of his pain symptoms. [R. 895-96.] The Appeals Council vacated the ALJ's decision [R. 920] and directed ALJ Sweeda to
• Further evaluate Plaintiff's subjective symptoms regarding his right arm;
• Further evaluate Plaintiff's obesity in combination with his other impairments;
• Further evaluate the opinion evidence;
• Account for [Plaintiff's] moderate limitations in concentration, persistence, or pace; and
• Resolve a conflict regarding the job of small part assembler.[R. 823.]
On July 23, 2021, the ALJ held a hearing with Plaintiff. [R. 823.] On August 4, 2021, the ALJ issued a subsequent decision finding Plaintiff had not been under a disability within the meaning of the Act from June 20, 2014, through the date of the decision. [R. 823-35.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2018, and had not engaged in substantial gainful activity since June 20, 2014, the alleged onset date. [R. 825-26, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: obesity, right shoulder impingement syndrome, sleep apnea, depression, anxiety, and diabetes. [R. 826, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of scrotal abscess and history of kidney stones. [R. 826.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 826, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except no lifting more than 5 pounds with the right upper extremity[;] frequent fingering and handling with the right upper extremity; no overhead reaching with the right upper extremity; no climbing ladders or scaffolds; occasional crawling, kneeling, and crouching; no exposure to temperature extremes, high humidity, concentrated pulmonary irritants or work hazards; can concentrate sufficiently in two hour increments to perform simple, repetitive tasks; and can tolerate occasional changes in work setting or procedure.[R. 828, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a mechanic. [R. 833, Finding 6.] Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 834, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from June 20, 2014, through the date of the decision. [R. 835, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 813-19.] Plaintiff filed this action for judicial review on September 6, 2022. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and should be reversed and remanded. [Doc. 12.] Specifically, Plaintiff contends the ALJ erred in his consideration and accommodation of Plaintiff's subjective symptoms regarding his right arm [id. at 8-12], in evaluating the opinion evidence from Dr. Lembo [id. at 12-14], and in his consideration of corroborating third-party statements [id. at 14-15].
The Commissioner, on the other hand, argues that the ALJ's decision should be affirmed because there is substantial evidence of record that Plaintiff was not disabled within the meaning of the Act. [Doc. 16.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ), ” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971). Remand is unnecessary 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.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's RFC); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of his insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1522, 416.922. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's RFC with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the RFC to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
RFC is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to his prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Treating Physicians
Because Plaintiff filed his claims before March 27, 2017, the treating physician rule provided in 20 C.F.R. §§ 404.1527 and 416.927 applies. See 20 C.F.R. §§ 404.1520c, 416.920c (stating that “[f]or claims filed before March 27, 2017, the rules in” §§ 404.1527 and 416.927 apply). Under this rule, if a treating physician's opinion on the nature and severity of a claimant's impairments is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because “it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time”); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we 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.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49, 462, 49, 464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49, 463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id.; see SSR 16-3p, 82 Fed.Reg. at 49, 463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49, 464; see 20 C.F.R. §§ 404.1529, 416.929 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC
As noted, Plaintiff argues that the ALJ failed to adequately evaluate his subjective symptoms regarding his right arm. [Doc. 12 at 8-12.] The Court agrees.
Record Evidence
When asked at the first hearing what keeps him from working, Plaintiff answered, “My right arm when I use it too much will swell. And I have muscle spasms that cause my arm to lock up in place.” [R. 41-42.] Plaintiff testified that it is “[o]verworking, continuous-repetitive movements” that cause his arm to lock. [R. 42.] Regarding the pain, he testified that he feels it in his right shoulder and it goes down his arm. [Id.] He stated that he takes oxycodone, as needed, for the pain, and he usually takes two five-milligram pills per day. [R. 42-43.] As a result of his problems with his right arm and hand, Plaintiff testified that he uses his left hand for almost everything even though he is righthanded. [R. 44-45.] He testified that if he uses his right hand, it will go numb and he will drop things. [R. 45.] He testified that at the instruction of his pain doctor, he does exercises with his arm to avoid his condition becoming even worse. [R. 48-49.] However, he testified that his arm swells up daily and when his arm is swollen, he cannot even close his right hand fully, causing him to drop items he is trying to hold with his right hand. [R. 49.] He testified that the medication dulls the pain somewhat but does not eliminate it. [Id.]
In his second hearing, the Plaintiff testified that he experiences pain in his right shoulder, biceps, right elbow, and into his right hand. [R. 848.] For pain, he takes oxycodone, gabapentin and methocarbamol, and he uses a TENS unit and ice packs. [Id.] Plaintiff testified that the medications make him lethargic and sleeping is problematic due to muscle spasms in his shoulder. [R. 850-51.] Plaintiff testified that he cannot do much with this right arm and has to resort to using his left arm for as much as possible to avoid swelling in his right arm. [R. 849.] Plaintiff indicated he has permanent nerve damage from a work injury to his rotator cuff. [Id.] Plaintiff also testified that he now lives alone, although he lived with friends at the time of the first hearing. [R. 852.] When performing household chores, Plaintiff testified that he does them at his own pace because he has to use his left hand and he is not as coordinated with his left hand. [Id.]
The transcript actually states “rotor cuff, ” but it appears that that is a mistake.
In a pain questionnaire from June 8, 2016, Plaintiff described his pain as feeling “like a spike impaled through [his] shoulder, ” spreading down his arm into the neck and lower back frequently throughout the day. [R. 267.] Plaintiff stated the pain occurs with any quick movements, reaching, or holding his arm in a position for more than 20 minutes and that it lasts between 15 to 60 minutes at a time. [Id.] Plaintiff indicated he can do daily activities such as walking, light housework, and driving, with some pain. [R. 268.] In his function report dated June 18, 2016, Plaintiff noted that any use of his right arm causes swelling from his elbow into his hand and fingers. [R. 271.] He also noted that the medication he is on for pain, muscle spasms, and numbness prevented S.C Works from finding him employment due to safety concerns due to medication side effects and his physical limitations. [Id.] Plaintiff noted it takes him two to three times longer to prepare food and meals than it used to and that he can do moderate cleaning, laundry, and light household repairs and pick up sticks from the yard, but it takes him twice as long as it used to before his injury. [R. 273.] His concentration is also affected when he is in pain. [R. 276.]
As a result of his medications, Plaintiff experiences the following side effects: escitalopram (dizziness, nausea, trouble sleeping); gabepentin (acting aggressive, anxiety); and methocarbamol (lethargy). [R. 278.]
The ALJ's Decision
Regarding Plaintiff's description of his symptoms, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms” but that his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” [R. 829-30.] The ALJ proceeded to explain that
despite the clinical findings of 4-5/5 strength of the right upper extremity, no atrophy, and only mild abnormalities on the most recent X-ray, the undersigned has considered [Plaintiff's] subjective reports in finding that he is limited to no lifting more than 5 pounds with the right upper extremity, frequent fingering and handling with the right upper extremity and no overhead reaching with the right upper extremity. These limitations
reasonably accommodate [Plaintiff's] complaints of pain with use of the right upper extremity to the extent supported by the relatively mild clinical abnormalities noted on pain management examinations. A determination that [Plaintiff] is completely unable to use his right arm is also generally inconsistent with his testimony that he is able to perform his home exercise program daily and perform activities of personal care and household chores independently.[R. 830.] The ALJ also considered that Plaintiff received monthly pain management treatment at Carolina Spine and Sport Rehabilitation from September 2016 through April 2021 and was routinely prescribed narcotics and other pain medications in addition to receiving periodic shoulder injections. [R. 831.] The ALJ concluded that Plaintiff's “right shoulder pain was generally stable throughout this period and treatment notes document no recommendations for additional surgery.” [Id.] Further, the ALJ found that the “record as a whole supports the determination that [Plaintiff's] mental impairments, in combination with his pain and side effects of medications, reasonably limit him to the performance of simple tasks of a low stress nature.” [R. 833.]
Discussion
Plaintiff argues that once the ALJ found that Plaintiff had a medically determinable impairment that could reasonably be expected to cause the limitations Plaintiff claimed concerning his right arm, the ALJ could not rely on lack of objective evidence alone when evaluating the severity of Plaintiff's symptoms. [Doc. 12 at 10]; see Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020) (reiterating “the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms”). Plaintiff further argues that there were significant flaws in the ALJ's reasoning for finding that Plaintiff's claimed symptoms were inconsistent with the evidence in the record. [Doc. 12 at 11-12.] The Court agrees.
The primary purported “inconsistency” that the ALJ found in Plaintiff's description of his symptoms is that the evidence indicated that Plaintiff exercised his right arm-as shown by his the strength data and the lack of muscle atrophy. [R. 830, 833.] The ALJ repeats several times that the evidence did not support the contention that Plaintiff could not use his right arm at all. [R. 830, 833.] But the ALJ's implicit premise that Plaintiff represented that he could not use his right arm at all is merely a straw man with no basis in the record. Plaintiff does not represent that he cannot use the arm at all, but only that use of the arm caused swelling, numbness, and pain such that on some days he could not use his right hand. [R. 45, 48-49, 267, 271, 276, 848-49, 855-56.] He freely admitted that he regularly exercised the right arm on instructions from his pain doctor to avoid the further worsening of his symptoms. [R. 48-49, 855-56.]
The ALJ's other primary support for his finding of inconsistency regarding Plaintiff's claimed limitations in his ability to use his right arm was that Plaintiff was able to take care of his personal needs and do chores around the house. [R. 830.] Again, the ALJ's analysis is completely at odds with the evidence in the record. Specifically, the analysis overlooks that Plaintiff stated that it is left arm, not his right, that he uses to do those chores and that, as a result, it takes him much longer than it did when he was able to use his right arm to perform them. [R. 44-45, 273, 852.] Thus, contrary to the ALJ's reasoning, Plaintiff's ability to complete these chores is no indication whatsoever that his ability to use his right arm is not limited to the extent Plaintiff describes. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (“An ALJ may not consider the type of activities a claimant can perform without also considering the extent to which [he] can perform them.”).
Given these significant flaws in the ALJ's reasoning, the Court cannot conclude that substantial evidence supports the ALJ's analysis. See Arakas, 983 F.3d at 100 (“Substantial evidence does not support the ALJ's conclusion that [Plaintiff's] subjective complaints were inconsistent with her daily activities, ‘because the record, when read as a whole, reveals no inconsistency between the two.'” (citation omitted)). It is the ALJ's duty to “build an accurate and logical bridge from the evidence to his conclusion.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks omitted). With the ALJ not having done so here, the Court recommends that the ALJ's decision be reversed and the case remanded for further proceedings, preferably to a different ALJ, so that the ALJ can evaluate the evidence in accordance with the applicable rules and adequately explain his decision.
Remaining Allegations of Error
Because the Court finds that the ALJ's failure to properly evaluate Plaintiff's subjective symptoms regarding his right arm is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and that the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.