Opinion
C/A No.: 1:17-cv-03155-DCC-SVH
01-03-2019
Deanna Felicia Jones, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about December 11, 2013, Plaintiff filed an application for DIB in which she alleged her disability began on March 22, 2013. Tr. at 150-51, 160-61. Her applications were denied initially and upon reconsideration. Tr. at 75-76, 92, 95-98, and 100-04. On April 21, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Tammy Georgian. Tr. at 31-60 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 18, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 11-30. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 20, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 46 years old at the time of the hearing. Tr. at 24, 31. She graduated high school. Tr. at 38. Her past relevant work ("PRW") was as a film processor or machine operator. Tr. at 54. She alleges she has been unable to work since March 22, 2013. Tr. at 150-51, 160-61.
The undersigned notes the medical records reflect treatment beginning in August 2012. See, e.g., Tr. at 449 (regarding a broken ankle), 485 (regarding a pap smear). However, after review of the entire record, the undersigned has only recited the medical records related to Plaintiff's allegedly disabling issues.
On August 7, 2012, David L. Castellone, M.D. ("Dr. Castellone"), at Palmetto Primary Care Physicians ("Palmetto PCP") performed a complete physical examination of Plaintiff wherein he noted several normal results, but also ordered several diagnostic tests, including an echocardiogram ("ECG"), mammogram, x-rays, and bloodwork, noting she exhibited abnormal weakness. Tr. at 367-69. Dr. Castellone assessed new weakness, new abnormal ECG, new ankle sprain, stable anxiety, and stable hypertension. Tr. at 369; Tr. at 486-90.
On August 24, 2012, a mammogram revealed no abnormalities. Tr. at 276, 429.
On September 4, 2012, Plaintiff presented to Palmetto PCP for a stress test and an ECG based on Plaintiff's hypertension and shortness of breath. Tr. at 282, 378-80. The results were normal. Id.
On September 5, 2012, Plaintiff presented to Dr. Castellone for follow up of hypertension and reviewed her test results. Tr. at 365-66.
On January 30, 2013, Plaintiff presented to Dr. Castellone with complaints of worsening right shoulder pain. Tr. at 363-64. Dr. Castellone's examination revealed decreased range of motion ("ROM") and pain in Plaintiff's cervical spine, but an otherwise normal exam. Id. He assessed new cervical strain or spondylosis and ordered an x-ray and magnetic resonance imaging ("MRI") of Plaintiff's cervical spine. Id.
Also, on January 30, 2013, Plaintiff presented to Palmetto PCP and underwent an x-ray of her cervical spine due to neck pain. Tr. at 288-89, 449. There was no evidence of fracture, subluxation, significant selective disc space narrowing, or focal paravertebral soft tissue swelling, resulting in a negative examination. Tr. at 289.
On February 8, 2013, Plaintiff presented to Palmetto PCP and underwent an MRI of her cervical spine due to right shoulder and neck pain. Tr. at 287, 437-38. The impression provided "[a]bnormal signal at the C2 and C5 levels, centrally within the cervical cord. The findings can be seen with d[e]myelination such as with [MS]. Other causes of abnormal cord signal such as [Acute Disseminated Encephalomyelitis] and transverse myelitis are less likely considerations," with "[n]o high-grade neuroforaminal or spinal canal narrowing." Tr. at 437-38. She was diagnosed with cervical strain or cervical spondylosis. Id.
On February 12, 2013, Plaintiff presented to Dr. Castellone for a follow up of cervical strain or spondylosis and reported continued throbbing pain. Tr. at 361-62. Dr. Castellone noted a decreased ROM and pain in her cervical spine, ordered a brain MRI, assessed possible multiple sclerosis ("MS") and uncontrolled cervical strain or spondylosis, and referred her to neurologist, John Lucas, M.D. ("Dr. Lucas"). Tr. at 362.
On February 25, 2013, Plaintiff presented to Palmetto PCP and underwent a brain MRI due to numbness in her right arm and leg, blurred vision, tiredness, frequent headaches, and symptoms existing since January 8, 2013. Tr. at 286, 435-36. The impression provided "[f]indings suspicious for [MS]." Tr. at 435. She was diagnosed with "[MS]/possible." Tr. at 286.
On February 25, 2013, Plaintiff underwent various laboratory tests. Tr. at 484.
On February 26, 2013, Plaintiff presented to Dr. Castellone to review her MRI results and reported weakness, dizziness, and headaches. Tr. at 358-60. Dr. Castellone noted Plaintiff had a decreased ROM and pain in her cervical spine, but she had normal gait, her cranial nerves were intact, and she was oriented to time, place, and person. Tr. at 359. He assessed uncontrolled anxiety, new possible MS, and stable hypertension. He referred her to Dr. Lucas and noted she would need a lumbar puncture. Id.
On March 1, 2013, Plaintiff presented to Dr. Lucas at Palmetto PCP due to an abnormal MRI with possible MS symptoms that began in November 2012 with discomfort in her right shoulder and continued in early 2013, causing numbness in her toes and her right leg to give out. Tr. at 267- 69, 306-08. Plaintiff had two plaques in her cervical spine and had right forearm stenosis. Id. It was noted Plaintiff's mother rapidly declined and passed away in 1986 due to MS. Id. Plaintiff reported she was fatigued all of the time, slept poorly, and had vision loss, pain in her neck and right cervical shoulder, and numbness and tingling sensations in her right arm. Tr. at 267. Plaintiff's physical examination revealed normal results, such as normal cerebellar, basal ganglia function, coordination, stance, and gait. Tr. at 269. Dr. Lucas noted Plaintiff's MRI revealed it was "likely MS," and he planned to rule out mimicking illnesses, conduct an Opthal exam, request laboratory tests, and refer to her physical therapy. Tr. at 268, 425-28 (containing lab results revealing high immunoglobulin G and M and Gamma Globulin). Dr. Lucas assessed new MS/possible, bilateral blurred vision, neck pain, and paresthesias. Tr. at 269.
On March 1 and 8, 2013, Plaintiff underwent various laboratory tests. Tr. at 472-83.
On March 8, 2013, Plaintiff presented to Dr. Castellone to discuss her lab results. Tr. at 356. Plaintiff reported she was unable to work, but would attempt rehabilitation in an effort to work. Id. Dr. Castellone's examination revealed Plaintiff was tender in her right shoulder, but had normal gait, and was oriented to time, place, and person. Tr. at 356. He assessed new sickle cell trait and anemia. Tr. at 357.
On March 20, 2013, Plaintiff presented to Dr. Castellone to discuss her leave from work. Tr. at 354. Dr. Castellone noted Plaintiff saw Dr. Lucas for possible MS and she would have a lumbar puncture to address the concern. Tr. at 354. He also noted Plaintiff had severe pain in her right shoulder that occurred especially with work-related lifting activity. Tr. at 354. His physical examination revealed severe right shoulder and cervical spine pain, but noted she had normal gait with intact cranial nerves, and she was oriented to time, place, and person. Tr. at 355. He assessed uncontrolled possible MS, uncontrolled neck pain, uncontrolled radiculopathy, and uncontrolled cervical strain or cervical spondylosis. Id. Dr. Castellone noted Plaintiff reported worsening symptoms and she was advised to perform no work for four weeks due to ongoing issues with possible MS, including obtaining a diagnosis and undergoing the work up with a lumbar puncture. He also noted Plaintiff had severe right shoulder and neck issues with likely disc radiculopathy that interfered with work. Id.
On March 21, 2013, a lumbar puncture was performed on Plaintiff at Trident Regional Medical Center due to MS. Tr. at 270-75, 374-77, 381-424. and Trident Medical Center Laboratory provided a pathology specimen report of her cerebrospinal fluid. Examination of the cerebrospinal fluid and cell block preparation slide showed the specimen was virtually acellular and no significant inflammation or evidence of malignancy. Id. There were six oligoclonal bands observed in the specimen, with four or more bands shown to be most consistent with MS, resulting in an "Cerebrospinal Fluid Oligoclonal Bands in the Diagnosis of MS." Tr. at 271. Trident Health System updated Plaintiff's medication list to include citalopram, hydrocodone, lorazepam, losartan, promethazine, and multivitamins. Tr. at 266.
On April 5, 2013, Plaintiff underwent a nerve conduction study and electromyography ("EMG") at Charleston Neurology Associates, upon Dr. Lucas' request, that showed normal results for Plaintiff's right extremities. Tr. at 439-44.
On April 5, 2013, Plaintiff presented to Dr. Castellone for follow up of cervical strain, possible MS, neck pain, and radiculopathy. Tr. at 349. Plaintiff reported insomnia, intermittent back pain with bending, and neck pain. Id. Dr. Castellone noted Plaintiff was tender in her right cervical area, but had normal gait. Tr. at 350. He assessed stable anxiety, uncontrolled possible MS, stable hypertension, uncontrolled neck pain, uncontrolled radiculopathy, and uncontrolled cervical strain or cervical spondylosis. Id. He prescribed Lortab, scheduled her for return visit in one month, and provided a work excuse until late May. Tr. at 350.
On April 5, 2013, Plaintiff also presented to Valerie Sinkler, M.D. ("Dr. Sinkler") at Palmetto PCP for possible MS symptoms exhibited by continued numbness in the right side of her body and subjective weakness. Tr. at 351- 53. Dr. Sinkler noted Plaintiff had numbness and weakness in her left hand and leg previously, and she reported numbness in her legs and feet, with tingling sensations. Tr. at 351. Her examination revealed normal results. Tr. at 352-53. Dr. Sinkler noted the diagnosis "at this point [was] probable MS," and she suggested solumedrol be administered for three days. Tr. at 353.
On April 6 and 7, 2013, Plaintiff presented to Anoma Gamage, M.D. ("Dr. Gamage") at Palmetto PCP for her second and third infusions of solumedrol for MS flare. Tr. at 343-45, 346-48.
On April 25, 2013, Plaintiff presented to Dr. Lucas to follow up on her possible MS. Tr. at 303-05. She reported numbness in her right arm and back, fatigue, poor sleep quality, dizziness, headaches, and tingling sensations in her trunk. Tr. at 303. She denied vision loss, chest pain, and joint or muscle pain. Id. It was noted Plaintiff had a brain MRI suggestive of MS (no active plaques), two plaques in her cervical spine, right foramen stenosis, and abnormal spinal fluid, with her progression of symptoms reflecting no change since her steroid infusion. Tr. at 303. Upon examination, Plaintiff had normal cerebellar, basal ganglia function, coordination, stance, and gait. Tr. at 304. Dr. Lucas assessed unchanged MS, stopped prednisone, prescribed Neurontin, discussed various medications and oral agents, and noted Plaintiff was working on a decision for treatment. Id.
On May 6, 2013, Plaintiff presented to Dr. Castellone for follow up of anxiety, cervical strain, hypertension, MS, neck pain, and radiculopathy. Tr. at 341-42. She reported neck and back pain, with numbness in her arm and leg. Tr. at 341. Upon examination, Dr. Castellone noted Plaintiff's right shoulder and neck were tender. Tr. at 342. He assessed new anemia, new rotator cuff syndrome, uncontrolled cervical strain or spondylosis, and uncontrolled MS. Id. He ordered laboratory tests and an MRI to be conducted and prescribed Ativan and Lortab. Id.
On May 6, 2013, various laboratory tests were performed for Plaintiff, noting her Gamma Globulin was high. Tr. at 466-71. On May 9, 2013, Plaintiff had an MRI of her right shoulder performed by Charleston Radiologists that concluded she had "[m]ild infraspinatus tendinopathy," but "[n]o rotator cuff tendon tear." Tr. at 434.
On May 20, 2013, Plaintiff presented to Dr. Castellone for follow up of anemia, cervical strain or spondylosis, MS, and rotator cuff syndrome. Tr. at 339-40. She reported neck, shoulder, arm, and low back pain. Id. Upon examination, Dr. Castellone noted Plaintiff's neck and right shoulder were tender, but she had normal gait and balance. Tr. at 340. He assessed new tenosynovitis, uncontrolled radiculopathy, uncontrolled cervical strain or cervical spondylosis, new anemia, and new MS. Id.
On May 24, 2013, Plaintiff presented to Andrew McMarlin, D.O. ("Dr. McMarlin"), at Palmetto PCP with right shoulder, neck, and low back pain that existed since December 2012, caused constant radiating pain, and was aggravated by walking, reaching, or pressure. Tr. at 336-38. Dr. McMarlin inspected Plaintiff's shoulders and conducted tests. Tr. at 337. He assessed bilateral muscle spasm, rotator cuff strain, and lumbosacral strain, he administered an injection, and he noted Plaintiff's tenderness may be related to her degenerative disc disease ("DDD"). Tr. at 337-38.
On June 6, 2013, Plaintiff presented to Dr. Lucas to follow up on her MS. Tr. at 301-02. She reported continued numbness and fatigue, but her "[z]apping pains" had improved and she denied blurred vision, joint or muscle pain, and depression or anxiety symptoms. Tr. at 301. Upon examination, Plaintiff had normal tone, strength, cerebellar and basal ganglia function, coordination, stance, and gait. Id. Dr. Lucas assessed unchanged MS and strongly urged Plaintiff to begin treatment. Tr. at 302.
On June 24, 2013, Plaintiff presented to Dr. Castellone with complaints of depression and to follow up on lumbosacral strain, muscle spasms, and a right rotator cuff strain. Tr. at 333-35. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, her neck had improved, but her legs were weak with parethasias and her lower spine was "bad." Tr. at 333. Plaintiff reported weakness in her lower extremities and depression. Id. Upon examination, Dr. Castellone noted Plaintiff had a decreased ROM and pain in her lumbar spine, but she had a normal gait. Tr. at 334. He assessed uncontrolled anxiety, stable hypertension, and uncontrolled lumbosacral strain. Id.
On June 27, 2013, Plaintiff presented to Palmetto PCP and underwent an MRI of her right shoulder due to shoulder pain, limited ROM, pain that radiated to above the elbow, and symptoms occurring since December 2012. Tr. at 285. She was diagnosed with rotator cuff syndrome. Id.
Also, on June 27, 2013, Plaintiff underwent an MRI of her lumbar spine due to complaints of low back pain and difficulty walking or standing for periods of time, noting she was diagnosed with MS in April 2013 and had numbness in her legs due to MS. Tr. at 284, 432-33. She was diagnosed with lumbosacral strain. Id. The impression provided "[n]o evidence of focal disk herniation or central canal stenosis" and "[m]ild facet arthropathy." Tr. at 432.
On July 29, 2013, Plaintiff presented to Dr. Castellone for follow up of hypertension and lumbosacral strain. Tr. at 330-32. Dr. Castellone noted Plaintiff's hypertension was moderate, she saw Dr. Lucas for her MS, and, while the DDD symptoms in her neck had improved, her back was still "bad." Tr. at 330. Upon examination, Dr. Castellone noted Plaintiff had decreased ROM and pain in her lumbar spine, but normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 331. He assessed stabled MS, uncontrolled DDD, and improved cervical strain or cervical spondylosis. Dr. Castellone referred Plaintiff to physical therapy for her back and noted she received iron infusions at home. Tr. at 332.
On August 1, 2013, Plaintiff presented to Dr. Lucas for a follow up of her MS. Tr. at 299. Plaintiff reported her numbness symptoms were still present in her right leg (more than the left), she had numbness in her right hand, she fell the prior week because her right leg gave out, she had low back pains, light headiness, and dizziness. Tr. at 299-300. Plaintiff denied depression or anxiety symptoms. Tr. at 299. Plaintiff's physical examination revealed normal strength, cerebellar and basal ganglia function, coordination, stance, and gait. Tr. at 300. Dr. Lucas assessed unchanged MS and anemia, noting Plaintiff agreed to begin treatment for her MS and selected Copaxone. Id.
On August 13, 2013, Plaintiff presented to Trident Medical Center with complaints of numbness and weakness on the right side of her face with a frontal headache. Tr. at 259-65. Plaintiff's physical examination was relatively normal with a mild right facial droop, with decreased sensation noted. Tr. at 263. Plaintiff was discharged with the primary impression of Bell's palsy. Tr. at 264.
On August 27, 2013, Dr. Lucas completed an Attending Physician's Statement of Functionality for Plaintiff to be submitted to Hartford Life Insurance Company for her disability claim as an employee. Tr. at 575-76. Dr. Lucas noted Plaintiff's condition was a result of sickness, she was diagnosed with MS, her subjective symptoms included numbness, weakness, and falls, and pertinent test results to support her condition were a brain MRI on February 25, 2013 with results suspicious for MS and a lumbar puncture test on March 21, 2013, with results consistent with MS. Tr. at 575. Dr. Lucas noted the onset of the condition was in November 2012, he first treated Plaintiff on March 1, 2013, she had been treated four times, most recently on August 1, 2013, and had an upcoming appointment on October 1, 2013. Id. Dr. Lucas also noted Plaintiff's MS had retrogressed and the expected duration of her restrictions or limitations was permanent. Tr. at 576. Dr. Lucas indicated his specialty was neurology. Id.
On August 30, 2013, Plaintiff presented to Dr. Castellone for follow up of cervical strain or cervical spondylosis, DDD, MS, medication adjustments, and a recent emergency room visit wherein she had right-side facial numbness. Tr. at 327-29. Dr. Castellone noted Plaintiff's neck and shoulder pain from the prior year had improved, but was still an issue. Tr. at 327. Dr. Castellone also noted Plaintiff received injections for her MS, but was "unable to work as weakness [and] also severe pain from neck[,] shoulder[,] [and] back" with "bad memory as well." Id. Plaintiff reported right-side facial numbness. Id. Upon examination, Dr. Castellone noted Plaintiff had decreased ROM and pain in her cervical and lumbar spine, but normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 328. He assessed paresthesias or right hemifacial, uncontrolled lumbosacral strain, and stable MS. Tr. at 329. He prescribed Lortab, and he ordered an MRI.
On September 3, 2013, Plaintiff presented to Dr. Castellone for a follow up of parethasias or right hemifacial. Tr. at 325-26. Dr. Castellone noted Plaintiff's MS began months ago, and she had not improved, that she saw Dr. Lucas and had right-sided facial numbness that radiated and caused her to feel dizzy and weak, as well as numbness in her left arm and leg that caused her to drop items. Id. Upon examination, Dr. Castellone noted Plaintiff had a decreased ROM, pain in her cervical and lumbar spine, and decreased grip in her left hand. Tr. at 326. Dr. Castellone noted an MRI had been ordered, "but need[ed] to be done today, patient worsening." Tr. at 326.
Later that day, Plaintiff presented underwent a brain MRI due to MS, numbness on the right side of her race, left arm, and toes. Tr. at 283, 430-31. She was diagnosed with paresthesia, right hemifacial. Tr. at 283. The impression provided:
There is a new focus of enhancement and T2 flair signal in the superior cerebellar peduncle on the right in the brainstem, which may simply be better visualized, or represent progression of disease. It is adjacent [to] the internal auditory canal on the right. There is no associated mass effect or hemorrhage. Extensive cerebral white matter changes are otherwise stable in appearance, and are suggestive of demyelinating disease, such as [MS].Tr. at 431.
On September 10, 2013, Plaintiff presented to Dr. Lucas to follow up on her MS, paresthesia, and radiculopathy. Tr. at 296-98. Dr. Lucas noted the recent MRI showed a new right cerebellar peduncle MS lesion. Id. Dr. Lucas noted Plaintiff previously had abnormal brain and spine MRIs with abnormal spinal fluid, she had undergone one steroid treatment, and her progression of symptoms were no relapse. Id. Plaintiff denied joint or muscle pain, but indicated she had numbness on the left side of her face and right side of her tongue, she felt "off balance," and was "very stressed." Id. Plaintiff's examination revealed she was crying, she had a slow, ataxic gait (wide based), but no tremors and normal strength. Tr. at 297. Dr. Lucas assessed recurrent MS and paresthesia on right hemifacial, prescribed prednisone, and scheduled a follow up. Id. Dr. Lucas noted Plaintiff had a brainstem MS attack, she had not improved after almost one month, and he would continue to give her a high dose of oral steroids, but explained to her that she had just started Copaxone, so the attack did not mean the medication would not help her. Tr. at 298.
On September 30, 2013, Plaintiff presented to Dr. Castellone to follow up on complaints of dizziness, fatigue, hypertension, paresthesia or right hemifacial, headaches, and her right ear "popping." Tr. at 323-24. Plaintiff reported fatigue, headache, lower back pain, and dizziness. Tr. at 323. Dr. Castellone noted Plaintiff's anxiety and depression were not well controlled. Id. He also noted she had an MS relapse, saw a neurologist, and had a bad back "at times." Id. Upon examination, Plaintiff had no edema, deformities, or cyanosis, normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 324. Dr. Castellone assessed uncontrolled anxiety, uncontrolled MS, new sinusitis, and uncontrolled DDD, and scheduled a return visit in one week. Id.
On October 1, 2013, Plaintiff presented to Dr. Lucas for a follow up of MS. Tr. at 293-95. It was noted her progression of symptoms included two relapses to date. Tr. at 293. Plaintiff complained of fatigue, achy leg muscles, numbness in her face and left arm, weakness, light headiness, dizziness, and headache. Id. Plaintiff's examination revealed mild left leg weakness with slight ataxia. Tr. at 294. Dr. Lucas assess uncontrolled MS and worsening fatigue, he ordered bloodwork, prescribed amantadine, continued Copaxone, and scheduled a return visit in one month. Id. Dr. Lucas noted Plaintiff had "only transient improvement with steroids in recent brainstem MS attack" and she could not work. Id.
The results of this bloodwork were provided on October 4, 2013. Tr. at 461-65.
On October 7, 2013, Plaintiff presented to Dr. Castellone for a follow up of sinusitis. Tr. at 320-22. Plaintiff reported improved fatigue, muscle aches in her legs and "bad" DDD symptoms, with numbness in her face and left arm, weakness, light headiness, dizziness, and headaches. Id. She described her anxiety and depression as severe, but improving. Id. Upon examination, Plaintiff had normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 321. He assessed abnormal blood chemistry, improving sinusitis, and uncontrolled DDD, and he referred her to massage therapy. Tr. at 321
On October 10, 2013, Dr. Castellone completed a statement regarding Plaintiff's ability to work. Tr. at 573. He stated,
I am the primary care physician for [Plaintiff]. She suffers from a new diagnos[i]s of [MS] which is active and under intense treatment by neurology.Tr. at 573.
In addition to this she has had issues with severe [DDD], lumbar and cervical spondylosis and radiculopathy. She has developed significant anemia. All the above have caused her to develop anxiety and generalized weakness which has caused her to be unable to work now and for the foreseeable future.
She is under my care and a neurologist as well.
Should you have any questions or concerns, please do not hesitate to contact me.
On November 25, 2013, Plaintiff presented to Dr. Castellone for follow up on bilateral leg stiffness, abnormal blood chemistry, DDD, and sinusitis. Tr. at 317-19. Plaintiff reported back pain, bilateral leg stiffness, and anxiety and depression that she described as severe, but improving. Tr. at 317. Dr. Castellone noted Plaintiff had decreased ROM and pain in her lumbar spine, but normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 318. He assessed stable anxiety, stable MS, and uncontrolled DDD, and adjusted Plaintiff's medications. Id.
On January 14, 2014, Plaintiff presented to Dr. Castellone to follow up on anxiety, DDD, and radiculopathy. Tr. at 315-16, 520, 523-32. Plaintiff's anxiety and depression were severe and constant, but improving. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS and had leg pain or tenderness. Id. Plaintiff reported feeling down, depressed, and hopeless, with little pleasure in the prior month. Id. Upon examination, Plaintiff had tenderness in her extremities, but normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 521. He assessed new myalgia, unchanged MS, and unchanged hypertension. Id. He refilled Plaintiff's medications and ordered diagnostic tests. Tr. at 521.
On January 27, 2014, Plaintiff presented to Dr. Lucas for a follow up of MS. Tr. at 290-92, 518-19. Plaintiff reported she still had intermittent numbness in her hands, but her left body numbness had resolved. Tr. at 290. It was noted recent back and muscle pains led to laboratory tests and the rheumatologist's opinion was still pending. Plaintiff denied blurred vision, neck pain, stiffness, muscle pain, and depression or anxiety symptoms, noting there were no new neurological symptoms. Id. Plaintiff's examination revealed she had mild left leg weakness, but her gait was normal. Tr. at 291. Dr. Lucas assessed stable MS, ordered a brain MRI, and scheduled a return visit in three months. Id. He noted he thought Plaintiff "really seem[ed] to be doing better," but she described some cognitive complaints that were limiting her ability to work. Tr. at 291-92. He also noted he was awaiting for the rheumatologist's opinion, would repeat an MRI in March, and discussed the 40 mg dosage of Copaxone with Plaintiff. Tr. at 291-92.
On January 14, 2014, Plaintiff underwent tests for a rheumatoid arthritis ("RA") factor, creatine kinase ("CK"), and other laboratory tests. Tr. at 451-60.
On February 14, 2014, Plaintiff presented to Dr. Castellone to follow up on hypertension, MS, and myalgia. Tr. at 312-14, 515-17. Plaintiff's hypertension was moderate. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, had abnormal rheumatologist labs, and would be seeing a rheumatologist soon. Tr. at 515. Plaintiff reported bilateral knee and back pain with occasional anxiety and depression. Id. She reported responding well to her medication, but feeling down, depressed, and hopeless, with little interest or pleasure in the prior month. Id. Upon examination, Plaintiff had normal gait with cranial nerves intact and was oriented to time, place, and person. Tr. at 516. He assessed stable anxiety, stable hypertension, uncontrolled arthritis, uncontrolled myalgia, and uncontrolled cervical strain or spondylosis. Id. He refilled Plaintiff's medications. Tr. at 516.
Also, on February 14, 2014, Dr. Castellone completed information for Plaintiff to request a disabled placard and license plate application. Tr. at 539-40. He completed a physician statement that certified Plaintiff had the "inability to ordinarily walk one hundred feet nonstop without aggravating an existing medical condition, including the increase of pain" and selected the disability was "[p]ermanent." Tr. at 540.
On March 10, 2014, Plaintiff presented for an initial rheumatology visit with Corey M. Hatfield, D.O. ("Dr. Hatfield"), due to pain in both knees, difficulty ambulating, stiffness, loss of balance, lower back pain, fatigue, and insomnia. Tr. at 445-48. Upon examination, Dr. Hatfield noted Plaintiff's strength, balance, gait, and ROM in her right extremities were normal, but her left side was weak. Tr. at 447. He noted Plaintiff had positive or elevated antinuclear antibody ("ANA"), erythrocyte sedimentation rate ("ESR"), and aldolase. Tr. at 448. He also noted Plaintiff had MS and patients with MS could have positive autoantibodies, but the elevated ESR was "most concerning." Id. He recommended adding naproxen for knee pain and scheduled a return visit in three months to repeat autoimmune labs. Id.
On March 17, 2014, Plaintiff presented to Dr. Castellone to follow up on anxiety, arthritis, cervical strain or spondylosis, hypertension, and myalgia. Tr. at 309-11, 512-14. She reported fatigue, knee and back pain, tingling sensations in her left hand, and occasional anxiety and depression. Tr. at 309. She reported responding well to her medication, but feeling down, depressed, and hopeless, with little interest or pleasure in the prior month. Id. Upon examination, Dr. Castellone noted Plaintiff was "weak [or] tender all over," but her gait was normal, her cranial nerves were intact, and she was alert and oriented to time, place, and person. Tr. at 310. He assessed new insomnia, stable MS, and stable hypertension, but noted Plaintiff reported "worsening symptoms." Id. He prescribed Naproxen, Norco, Daypro, and Trazodone. Tr. at 311.
On April 21, 2014, Dr. Castellone completed a treatment form for Plaintiff's medical condition to be submitted to the state agency examiner. Tr. at 495. Dr. Castellone noted Plaintiff's diagnoses included MS, anxiety, and depression; he had prescribed Effexor XR, Trazadone, and Ativan; these medications had helped her condition; and he had not recommended psychiatric care. Id. He also noted Plaintiff was oriented to time, person, place, and situation, her thought process was intact, her thought content was appropriate, and her memory was good, but she was depressed. Id. Dr. Castellone did not indicate whether Plaintiff exhibited any work-related limitation in function due to a mental condition. Id.
Also, on April 21, 2014, Plaintiff presented to Dr. Castellone for a follow up of hypertension, insomnia, and MS. Tr. at 509-11. Plaintiff's hypertension was moderate. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, experienced fatigue and poor sleep, and she was "unable to work," such that she was depressed. Tr. at 509. Plaintiff reported fatigue, bilateral knee and back pain, tingling sensations, and stable anxiety. She also reported responding well to her medication, but she felt down, depressed, and hopeless during the prior month. Id. Upon examination, had no edema, deformities, or cyanosis in her extremities, normal gait with cranial nerves intact, and she was oriented to time, place, and person. Tr. at 510. He assessed stable anxiety, stable MS, stable hypertension, stable DDD, stable radiculopathy, stable insomnia, stable cervical strain or spondylosis. Id. Dr. Castellone prescribed Norco and counseled Plaintiff regarding stress management, noting she was "unable to work as totally dis[a]bled [due to] MS, DDD, [and] depression." Id. Dr. Castellone recommended Plaintiff maintain her current treatment plan. Tr. at 510-11.
On May 13, 2014, Cleve Hutson, M.D. ("Dr. Hutson"), a state agency medical consultant completed a physical residual functional capacity ("RFC") assessment. Tr. at 67. He opined Plaintiff could occasionally lift, carry, push or pull twenty pounds and frequently lift, carry, push, or pull ten pounds, but was limited in her left lower extremity to only frequently, due to weakness. Tr. at 68. He also opined she could stand or walk for two hours, sit for about six hours, balance without limit, occasionally climb ramps or stairs, stoop, kneel, and crouch, but never crawl or climb ladders, ropes, or scaffolds, noting these postural limitations were due to Plaintiff's MS with left-sided weakness and numbness. Id. In addition, he opined Plaintiff was limited to frequent reaching overhead with her left upper extremity due to left-side weakness. Tr. at 69. Finally, he opined Plaintiff had environmental limitations, such that she should avoid concentrated exposure to hazards due to MS with left-side weakness. Id. Dr. Hutson explained,
[Plaintiff] alleges that can lift only 5 pounds, squatting, bending, standing, walking and kneeling are difficult because of knee pain. Walking 50 yards requires 10 minutes rest before resuming. On left side can't hold any thing long [second] to numbness. I'll drop it. [Plaintiff's] allegations are supported in the longitudinal record with exams, labs, x-rays and imaging studies along with functional studies.Tr. at 70.
On June 13, 2014, Cashton B. Spivey, Ph.D. ("Dr. Spivey"), a state agency consultative examiner performed a psychological evaluation of Plaintiff. Tr. at 501-05. He conducted a clinical interview and administered a Wechsler Adult Intelligence Scale - Fourth Edition ("WAIS-IV") test, and a Wide Range Achievement Test - Revision Four ("WRAT-4") test. Id. Dr. Spivey noted Plaintiff's aunt drove her to the evaluation. Id. Plaintiff reported she was participating in the assessment to evaluate her various symptoms, including MS. Id. Dr. Spivey reviewed Plaintiff's history and noted her medications. Id. Plaintiff reported she could dress independently and use a microwave oven, but she did not do most household chores and was not very active during the day. Id.
On the WAIS-IV exam, Dr. Spivey noted Plaintiff's perceptual reasoning score fell in the low-average range while her other index scores fell in the borderline intellectual functioning range. Tr. at 503. He noted "[o]verall, she appears to be an individual who operates primarily in the borderline intellectual range." Tr. at 503. On the WRAT-4 exam, Dr. Spivey noted Plaintiff's scores indicated she appeared to function below what would be expected for a 44 year old individual in reading, spelling, and arithmetic, but her math computation fell in the borderline range. Tr. at 504.
Dr. Spivey concluded, based on the results of the evaluation, Plaintiff appeared to "be an individual of borderline intelligence with academic achievement difficulties" and noted "she may be experiencing a decrement in intellectual functioning as a result of her [MS]." Tr. at 504. Dr. Spivey noted Plaintiff met the diagnoses criteria for major depressive disorder, generalized anxiety disorder, and "rule out possible neurocognitive disorder due to [MS]. (Borderline intellectual functioning)." Id. He also noted Plaintiff believed she was incapable of performing household duties and chores secondary to MS. Id. Dr. Spivey opined Plaintiff "would be capable of understanding simple instructions and performing simple tasks in the workplace," but she "would display difficulty understanding complex instructions and performing complex tasks in the workplace." Id. He also opined "[s]he would display difficulty relating well to others in the workplace due to the magnitude of her reported dysphoria as well as her emotional lability. She would display difficulty with stamina and persistence in the workplace due to complaints of a low energy level, and attention/concentration problems." Tr. at 505.
On June 30, 2014, Lisa Clausen, Ph.D. ("Dr. Clausen"), a state agency psychologist consultant completed a psychiatric review technique ("PRT") assessment and mental RFC assessment. Tr. at 65-67, 70-72. Dr. Clausen opined Plaintiff had mild restriction of activities of daily living ("ADLs"), moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace, but no repeated episodes of decompensation. Tr. at 65. In addition, Dr. Clausen noted she gave great weight to the consultative examination performed by Dr. Spivey on June 13, 2014, Plaintiff's reports were credible, and she was considered capable of simple, routine tasks that precluded ongoing interaction with the public. Tr. at 66-67.
On mental RFC assessment, Dr. Clausen opined Plaintiff had understanding and memory limitations, such that she was moderately limited in her ability to understand and remember detailed instructions, explaining she was "able to understand and remember short and simple instructions, but would have variable difficulties in understanding and remembering detailed instructions." Tr. at 70-71. Plaintiff was also moderately limited in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, and interact appropriately with the general public and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 71-72. Finally, Plaintiff was moderately limited in her ability to respond appropriately to changes in the work setting and travel in unfamiliar places or use public transportation. Id.
On July 15, 2014, Plaintiff presented to Dr. Castellone to follow up for anxiety, cervical strain and spondylosis, DDD, hypertension, insomnia, MS, radiculopathy, and sickle cell trait. Tr. at 506-08, 522, 559-61, 571. She reported headaches, sharp pains, shortness of breath with exertion, left-side numbness, and stable anxiety. Tr. at 506. Plaintiff's hypertension was moderate. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, experienced fatigue and poor sleep, and she was "unable to work," such that she was depressed. Id. He also noted Plaintiff had lower back, left arm, and bilateral leg pain, and reported it was "really getting worse." Id. Her depression screen noted she had felt down, depressed, or hopeless during the prior month and bothered by little interest or pleasure. Id.
Upon examination, Dr. Castellone noted Plaintiff's lumbar and cervical spine was tender and her neurological components were "unsteady," but she had no lymphadenopathy. Tr. at 507. Dr. Castellone assessed unchanged sickle cell trait, stable MS, stable hypertension, uncontrolled DDD, and uncontrolled radiculopathy. Tr. at 507. He stopped Plaintiff's Effexor, Naproxen, and Daypro, refilled her amantadine, and Zoloft, and counseled Plaintiff to check her blood pressure, continue with Dr. Lucas, and report worsening symptoms. Tr. at 508. Dr. Castellone recommended Plaintiff maintain her current treatment plan. Id. He discussed that Plaintiff "need[ed] [a] cane as uns[t]able." Id.
Also, on July 15, 2014, Dr. Castellone completed a medical opinion statement regarding Plaintiff's ability to do work-related physical activities. Tr. at 542-45. Dr. Castellone provided the following limitations: Plaintiff could lift less than ten pounds on an occasional or frequent basis, stand, walk, or sit for less than two hours, sit for thirty minutes before changing positions, stand for ten minutes before changing positions, walk around every ten minutes for ten minutes, but needed the ability to sit at will. Tr. at 542-43. Dr. Castellone opined Plaintiff was "unable to return to work at all." Tr. at 543. Dr. Castellone also opined Plaintiff would need to lie down at unpredictable intervals during a work shift, approximately every two hours, and noted she "is most comfortable laying down." Tr. at 544. He noted medical findings, such as an MRI, nerve conduction study, physical therapy, rheumatology report, and x-ray, supported the limitations that he provided. Id. Dr. Castellone noted Plaintiff could never twist, stoop (bend), crouch, or climb stairs or ladders. Tr. at 544. Dr. Castellone noted Plaintiff's impairments affected her physical functions for handling, fingering, and feeling, but not reaching or pushing and pulling. Id. He noted these physical functions were affected due to DDD in Plaintiff's neck, noting it was "very painful for her to perform many common functions." Tr. at 545. Dr. Castellone noted these limitations were supported by medical findings, such as an MRI, nerve conduction study, and x-rays. Tr. at 545.
Dr. Castellone noted Plaintiff needed to avoid all exposure to hazards (such as machinery or heights) and avoid even moderate exposure to extreme heat, but she had no environmental restrictions for extreme cold, wetness, humidity, noise, fumes, odors, dusts, gases, or poor ventilation. Tr. at 545. He noted Plaintiff could not operate machinery due to her current medications and increased heat made her pain worse. Tr. at 545. Dr. Castellone noted the earliest date the symptoms and limitations he provided applied was February 23, 2013, and Plaintiff was "unable to return to work." Id.
On September 10, 2014, Celine Payne-Gair, Ph.D. ("Dr. Payne-Gair"), a state agency psychologist consultant completed a PRT assessment and mental RFC assessment upon reconsideration. Tr. at 84-85, 87-89. Dr. Payne-Gair opined Plaintiff had mild restriction of ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace, but no repeated episodes of decompensation. Tr. at 84. She noted Plaintiff's allegations were partially credible as they were not supported by the overall evidence. Tr. at 85.
For Plaintiff's mental RFC assessment, Dr. Payne-Gair opined she had understanding and memory limitations, such that she was moderately limited in her ability to understand and remember detailed instructions, explaining she was "able to understand and remember short and simple instructions, but would have variable difficulties in understanding and remember detailed instructions." Tr. at 88. Plaintiff was moderately limited in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, interact appropriately with the general public, and respond appropriately to changes in the work setting and travel in unfamiliar places or use public transportation. Tr. at 88-89.
This mental RFC assessment differed from Dr. Clausen's initial assessment, as it did not include limitations regarding Plaintiff's ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 70-72. However, both assessments noted Plaintiff's limitations regarding detailed instructions. Tr. at 70-72.
On September 15, 2014, Plaintiff presented to Dr. Castellone for follow up of DDD, hypertension, MS, radiculopathy, and sickle cell trait. Tr. at 556-58, 562-63, 564 (depicting a chest x-ray), 569-70. Dr. Castellone noted Plaintiff had nasal congestion for a few weeks and it had worsened. Tr. at 556. He also noted Plaintiff had an MS relapse, saw a neurologist for this issue, and her "back [was] bad at times." Id. Plaintiff reported fatigue, cough, back pain, numbness, tingling in her left arm and leg, and anxiety and depression. Id. Upon examination, Plaintiff had no edema, normal gait, intact cranial nerves, and she was oriented to time, place, and person. Tr. at 557. Dr. Castellone assessed stable MS, new sinusitis, and unchanged DDD. Id. He ordered a diagnostic test, noted he counseled Plaintiff regarding her report of worsening symptoms, and maintained her current treatment plan. Tr. at 557.
On September 15, 2014, Marvin Bittinger, M.D. ("Dr. Bittinger"), a state agency medical consultant completed a physical RFC assessment upon reconsideration. Tr. at 86. He opined Plaintiff could occasionally lift, carry, push or pull twenty pounds and frequently lift, carry, push, or pull ten pounds. Id. He also opined she could stand or walk for four hours, sit for six hours, occasionally climb ramps or stairs, stoop, kneel, or crawl, and frequently balance or crouch, but never climb ladders, ropes, or scaffolds. Id. In addition, he opined Plaintiff had environmental limitations, such that she should avoid even moderate exposure to extreme heat. Id.
This physical RFC assessment differed from Dr. Huston's initial assessment on May 13, 2014, as it modified the various postural, manipulative, and environmental limitations contained in the initial assessment. Tr. at 67-70. However, both assessments noted Plaintiff's limitations regarding her ability to walk or stand was four hours or less.
On October 6, 2014, Plaintiff presented to Dr. Castellone for follow up of DDD, MS, and sinusitis. Tr. at 553-55. Plaintiff's hypertension was moderate. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, and she was "ok." Tr. at 553. Plaintiff reported responding well to her medication, but she felt down, depressed, or hopeless during the prior month. Id. Upon examination, Dr. Castellone noted Plaintiff had no edema, deformities, or cyanosis, normal gait, intact cranial nerves, and she was oriented to time, place, and person, with no lymphadenopathy. Tr. at 554. Dr. Castellone assessed stable MS, stable sinusitis, and stable DDD. Id.
On November 17, 2014, Plaintiff presented to Dr. Castellone for follow up of DDD, MS, and sinusitis. Tr. at 550-52. Plaintiff's hypertension was moderate. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, and she had bowel cramps with diarrhea. Tr. at 550. Dr. Castellone also noted Plaintiff's DDD symptoms were "bad at times." Id. Plaintiff reported a burning sensation in her stomach and pain in her right hand, but she acknowledged having slept better. Id. Plaintiff reported responding well to her medication, but she felt down, depressed, or hopeless during the prior month. Id. Upon examination, Dr. Castellone noted Plaintiff was tender in her right thumb and spine and exhibited weakness, but she was oriented to time, place, and person. Tr. at 551. He assessed new tenosynovitis, stable MS, stable hypertension, uncontrolled DDD. Id. He referred Plaintiff to an orthopedist and prescribed Norco. Tr. at 552.
On January 19, 2015, Plaintiff presented to Dr. Castellone for follow up DDD, hypertension, MS, and tenosynovitis. Tr. at 547-49. Plaintiff's hypertension was moderate. Id. Dr. Castellone noted Plaintiff saw Dr. Lucas for her MS, which was "interfering [with her] ADL's," and she was applying for disability. Tr. at 547. Plaintiff reported anxiety and depression. Id. She also reported responding well to her medication, but she felt down, depressed, or hopeless during the prior month. Id. Upon examination, Plaintiff had no edema, deformities, or cyanosis in her extremities, normal gait, and intact cranial nerves. Tr. at 548. He assessed uncontrolled anxiety, uncontrolled depression, uncontrolled MS, and uncontrolled sinusitis. Id. He refilled Plaintiff's medications and maintained Plaintiff's current treatment plan. Tr. at 548.
See Tr. at 565-68 (providing lab results in April 2015).
On June 22, 2015, Plaintiff presented to Dr. Castellone, who noted her MS was stable on medications and she had a history of chronic pain from DDD, anxiety, depression and stress, but she was trying to walk daily. Tr. at 590-91. Dr. Castellone's examination revealed neck pain and fluid retention in her knee with painful ambulation, but normal mood and affect, normal motor in all extremities, and no pain in her back with ROM. Tr. at 590. Dr. Castellone assessed MS, depressive disorder, insomnia, degeneration of intervertebral disc, anxiety state, and sickle cell trait. Tr. at 591. Dr. Castellone adjusted Plaintiff's medications and ordered laboratory tests and a mammogram. Id., 592-93.
On or about June 30, 2015, Plaintiff had an abnormal mammogram. Tr. at 587-89. In addition, an ultrasound was performed finding benign sub-centimeter cysts seen in the left breast with no suspicious findings, and it was recommended Plaintiff return to annual screenings. Tr. at 594-97.
On August 27, 2015, Plaintiff presented to Dr. Lucas for a follow up appointment for her MS. Tr. at 584. Dr. Lucas noted Plaintiff finally returned for a follow up of "remitting relapsing" MS. Tr. at 584. He also noted Plaintiff had "been noncompliant with follow up and had not had the testing [he had] recommended." Id. Dr. Lucas stated Plaintiff had a history of abnormal brain MRI, spinal MRIs, and spinal fluid, she was treated initially with steroids and then Copaxone, and she had experienced two "total relapses." Id. Plaintiff's only current symptom was intermittent numbness in her left arm. Id. Dr. Lucas reviewed various laboratory results, and his examination revealed many areas of the exam were normal, with subjective decreased sensation to light touch in her left arm. Tr. at 585-86. Dr. Lucas assessed MS and blurred vision, he refilled Copaxone, and ordered a brain MRI, noting Plaintiff needed to have an MRI to assess her response to therapy. Tr. at 586.
On September 22, 2015, Plaintiff presented to Dr. Castellone for a three-month follow up. Tr. at 582. Dr. Castellone performed a depression screening and interpreted Plaintiff suffered from mild depression, noting her MS, anxiety, chronic pain, and DDD. Id. Plaintiff reported fatigue, anxiety, and increased stress. Id. Upon examination, Dr. Castellone noted Plaintiff had a normal general exam, with no pain in her back. Tr. at 583. Dr. Castellone assessed MS, degeneration of intervertebral disc, insomnia, depressive disorder, and anxiety state. Id. Dr. Castellone adjusted Plaintiff's medications for MS due to increased stress. Id.
On February 29, 2016, Plaintiff presented to Dr. Lucas for a six-month follow up. Tr. at 579-81. Dr. Lucas noted Plaintiff finally returned for a follow up of "remitting relapsing" MS. Tr. at 579. He also noted Plaintiff had "been noncompliant with follow up and had not had the testing [he had] recommended." Id. Plaintiff's only current symptom was intermittent numbness in her left arm, but she also complained of emotional lability, fatigue, and leg and left arm weakness. Id. Dr. Lucas noted Plaintiff was crying, but other portions of the neurological examination were normal. Tr. at 579-80. However, Plaintiff's motor strength revealed left hand weakness and subjective decreased sensitivity to light touch in her left arm, but her coordination and gait were normal. Tr. at 580. Dr. Lucas noted Plaintiff was "unable to afford the co-pay on the MRI which is why she has not had an MRI in the past. We will try tricounty radiology. She is [to] come back after her MRI is complete." Id. Dr. Lucas also noted he recommended an MRI because her last one occurred in 2013 and it could help him assess whether the disease was slowing. Id.
On April 7, 2016, Plaintiff presented to Dr. Lucas for a follow up. Tr. at 599-604. Plaintiff's only symptom was intermittent numbness in her left arm, but she still complained of emotional lability, fatigue, and leg and left arm weakness. Id. Plaintiff reported having experienced pain in both of her hands for a month, wrapping them in ace bandages with arthritis cream. Id. Dr. Lucas referred Plaintiff to orthopedics due to pain waking her up at night. Id.
Dr. Lucas noted Plaintiff still had not had an MRI because she has "not been able to afford" it, and expressed concern there was "no way [to] truly assess response to therapy for any subclinical disease," as she had not had imaging since she started Copaxone. Id. He also noted Plaintiff had a cane, but was still falling repeatedly. He did not believe Plaintiff's hand symptoms were due to MS, and he suspected she had carpal tunnel syndrome or an inflammatory condition, such that he arranged for blood work and a nerve conduction study, noting Plaintiff had a "hand surgical appointment pending." Tr. at 600. Dr. Lucas assessed MS and carpal tunnel syndrome in both upper extremities. Tr. at 603.
Dr. Lucas continued Plaintiff's prescription for Copaxone and stressed the importance of obtaining a brain MRI for him to assess her response to therapy. Tr. at 603. He noted he had provided the contact information for St. Francis hospital's charity office and Plaintiff did have some difficulty walking with a good deal of paresthesia and pain complaints, noting his examination revealed Plaintiff walked slowly with a cane. Id. Dr. Lucas concluded "I do not believe she is capable [of] working at this time due to her [MS]. By definition this illness tends to worsen over time." Id.
On April 20, 2016, Kathrine M. Bloodworth, R.N. ("Nurse Bloodworth"), submitted a letter stating Dr. Castellone was the primary care physician for Plaintiff, and he had signed a statement of disability for her on May 8, 2014. Tr. at 606. Attached thereto were statements by Dr. Castellone regarding Plaintiff's conditions and his opinion regarding her disability. Tr. at 607-611.
Dr. Castellone's first statement provided the following:
1. I am a medical doctor . . . [and] board certified in family medicine. I have been asked by my patient, [Plaintiff], to provide this statement to be used in conjunction with her quest for disability coverage. This statement [is] based upon my medical education and experience and based upon my specific knowledge of [Plaintiff's] problems and treatment history.
2. [Plaintiff's] medical records are attached hereto as exhibit A. I refer the reader to those records for the specifics of her medical problems and treatment history. She suffers from [MS], cervical spondylosis, shoulder tenosynovitis, radiculopathy, anemia, [and] chronic neck and back pain. She also suffer[s] from depression and anxiety which are secondary to her physical conditions. Subjectively, as a result, she suffers: [from chronic back, neck, and right shoulder pain, numbness in her hands, lower extremities, and face, muscle aches and pains, trouble ambulating, fatigue, and anxiety and depression].
Her activities are limited as follows: ["She has difficulty performing [ADLs]; "She cannot perform any activity for prolonged periods of time"; "She cannot sit, stand, or walk for extended periods"; "She has difficulty performing activities that require lifting, pushing, pulling, bending, etc."; "Due to her lower extremities going numb she has trouble ambulating and often falls"; "She cannot lift over five pounds"; "She experiences increased pain when in one position for an extended period of time, and she is required to change positions frequently"; "She has difficulty performing activities that require extensive use of her right hand, and she experiences numbness in her right hand"; "She has difficulty sleeping at night"; "She is fatigued throughout the day both mentally and physically due to her inability to sleep at night"; and "She suffers from depression and anxiety which is secondary to her physical condition."]Tr. at 609-11. Dr. Castellone provided a subsequent statement that modified the definition of disability he had been provided previously to:
3. [Plaintiff] is treatment compliant, and she currently takes Hyzar, Neurontin, Amantadine, Cyclobenzaprine, Daypro, Effexor, Copaxone, Iron, and Hydrocodone. Her prescription medications cause her to suffer side effects including drowsiness.
4. [Dr. Castellone reviewed the requirements of Plaintiff's machine operator position.]
5. I have been advised that the disability policy in question contains a definition of disability as follows: "Totally Disability or Totally Disabled means that you are prevented by: [Injury, sickness, mental illness, substance abuse, or pregnancy] from performing the essential duties of your occupation . . . ."
6. It is my opinion, based on the medical education and experience and based upon my specific knowledge of [Plaintiff's] problems and treatment history that she is and has been completely and totally disabled from performing her own occupation, consistent with the definition of disability above, or any occupation. I render my opinion based upon [Plaintiff's] above described medical conditions, the symptoms she suffers, and my knowledge of her job duties. It is my opinion that she has been so disabled since she ceased working in March 2013 and that she will remain so indefinitely into the future.
Long-term disability means that you are not able to . . . perform the essential duties of your regular occupation. After six months of receiving LTD benefits, you must be totally disabled to continue eligibility for benefits. "Totally disabled" means you are unable to work at any job for which you are or could become qualified by education, training, or experience.Tr. at 607. Based upon this new definition, Dr. Castellone's opinion that Plaintiff was totally disabled for the indefinite future remained the same. Tr. at 607-08.
In addition, Dr. Castellone submitted a statement dated April 20, 2016, stating,
I am the primary care provider for [Plaintiff]. In regards to her disability it is still my opinion that [Plaintiff] is unable to work. Her symptoms and limitations are unchanged from the medical opinion that I completed on July 15, 2014. If you should have any questions or concerns please feel free to contact my office.Tr. at 613.
On May 25, 2016, Plaintiff underwent an MRI at St. Francis with the following resulting impression:
Diffuse white matter changes consistent with given diagnosis of multiple sclerosis.Tr. at 615.
Solitary new plaque, only minimal enhancement, right posterior frontal corona radiata.
Previous enhancing plaque right middle cerebellar peduncle is diminished and no longer shows significant enhancement.
On June 3, 2016, Dr. Lucas reviewed the MRI results with Plaintiff, noting the recent MRI showed "a new frontal lesion but the MRI is otherwise encouraging." Tr at 616-20. He reviewed her laboratory testing as well, noting she was anemic, started on iron supplements by Dr. Castellone, and her sedimentation rate was significantly elevated. Id. He also noted Plaintiff had not participated in the nerve conduction study requested or seen a hand surgeon. Id. Plaintiff reported not having slept well, and she had burning pain, swelling, and stiffness in her hands, elbows, and knees, with significant low back pain, headaches, and some blurry vision. Id. Plaintiff also reported having used her prescribed hand braces twenty-four hours a day due to pain. Tr. at 616-17. Upon examination, Dr. Lucas noted both of Plaintiff's wrists were swollen, she cried, had bilateral abductor pollicis brevis weakness, decreased sensation to light touch in both hands, and she walked slowly with a cane, but had normal coordination. Tr. at 618-19. Dr. Lucas assessed relapsing remitting MS, carpal tunnel syndrome in both upper extremities, anemia, polyarthralgia, elevated sedimentation rate, and headache. Tr. at 619. Dr. Lucas concluded,
The undersigned notes the date of the report reflects June 3, 2016, in one section and May 3, 2016, in another. Tr. at 616. Because the MRI was not conducted until May 25, 2016, the undersigned has used the June 3, 2016 date. Id.
I reviewed with the patient there is only a single new lesion on her MRI in comparison to 2013 which is encouraging. She certainly does have definitive [MS] and I again voiced my opinion that I do not think she is capable or working due to her [MS], chronic back pain, [and] fatigue related to her [MS]."Tr. at 619. Dr. Lucas continued Plaintiff's Copaxone. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on April 21, 2016, Plaintiff testified she graduated high school and attended two years of college, but did not earn a degree. Tr. at 38. She testified she lived with her husband, who worked full-time, and her seven-year-old son. Tr. at 35-36. She explained she had a driver's license, but rarely drove because it was difficult for her to focus and her aunt usually took her to appointments. Tr. at 36-38
Plaintiff testified she previously worked full time for fifteen years as a machine operator processing x-ray film. Tr. at 38-39. She testified the position required her to lift fifty pounds, and she worked for a period of time when she started to become sick. Tr. at 39. She explained she had issues with numbness in her legs and neck, as well as shoulder pain, that gradually interfered with her work and, in early 2013, she could no longer perform the work and was diagnosed with MS. Tr. at 39-40.
Plaintiff testified she had pain throughout her body, was unable to sleep at night, had issues standing, and fell due to instability. Tr. at 42. She explained the pain was in her legs, neck, hands, back, and head. Tr. at 47-51. Plaintiff clarified her cane was not prescribed because she purchased it when it became necessary, informing her doctors that she had it in 2014. Tr. at 42-43, 46. Plaintiff explained she wore hand braces, prescribed by her doctor, on both hands due to pain. Tr. at 48. Plaintiff testified she was able to lift less than five pounds, walk less than one hundred feet, and sit for twenty minutes, but needed to stand up and stretch afterwards. Tr. at 46. She explained she had issues bending, stooping, or climbing stairs due to her back and legs. Tr. at 51. She testified she frequently dropped items due to numbness in her fingers. Tr. at 48. She explained she had difficulty with concentrating, getting along with others, and feeling depressed or hopeless. Tr. at 49-50. She stated she had headaches two to three times a week that lasted three to four hours, but she only took over-the-counter medication to avoid a prescription dependency. Tr. at 50-51.
Plaintiff explained on a typical day that she got up at six o'clock, ate a sandwich that her husband prepared for her, took her medicine, dressed with her aunt's assistance, sat on a stool to load the dishwasher, and lied down to watch television or sat to speak with her friend, until she went to bed at nine o'clock. Tr. at 43-44, 47. Plaintiff noted she woke up every two hours at night. Tr. at 47. She explained that her medicine made her "very tired all the time" and caused her to lie down "a lot," approximately three time a day. Tr. at 44, 47, 49. Plaintiff testified she did not cook, but her husband or aunt cooked meals. Tr. at 44, 47. Plaintiff stated she did not attend church often anymore and did not have hobbies. Tr. at 45.
The ALJ inquired regarding Dr. Lucas' notes from February 2016, indicating a break in treatment and noncompliance. Tr. at 40. Plaintiff explained she had not broken her treatment, but Dr. Lucas desired her to have an MRI and she was unable to afford it. Tr. at 40-41. She explained she received food stamps. Tr. at 36. The ALJ inquired if she had been referred to "a low-cost or a no-cost clinic for the MRI." Tr. at 41. Plaintiff explained she had been provided one facility to contact, but, when she did so, she was informed by the nurse it would be $500.00 for the test. Tr. at 41-42. Plaintiff explained she was unable to afford it. Tr. at 42. The ALJ inquired about a note in her file that Dr. Lucas "this month suggested [she] contact the St. Francis Hospital's charity office." Tr. at 52. Plaintiff responded she had contacted the facility to submit an application and had an appointment scheduled in approximately two weeks, on May 3, 2016. Id. The ALJ agreed to leave the record open for receipt of the report. Tr. at 59-60.
Plaintiff's attorney notified the ALJ on May 3, 2016, that he had been in touch with Roper Hospital and it agreed to perform the MRI, such that when the request was processed and Plaintiff's qualification for financial assistance was confirmed, the charge for the MRI would be handled by the charitable foundation. Tr. at 258. Plaintiff's counsel requested an additional six weeks to submit the record to the ALJ. Id. The MRI report and Dr. Lucas' review of same were subsequently submitted to the ALJ prior to her decision. Tr. at 22, 30, 615-20.
At the end of the hearing, Plaintiff reiterated how devastating her illness had been to her life. Tr. at 51-52.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Coretta Key Harrelson testified at the hearing. Tr. at 53-58. The VE categorized Plaintiff's PRW as a film processor (machine operator), Dictionary of Occupational Titles ("DOT") number 699.682-018, as medium exertional level with a Specific Vocational Preparation ("SVP") of 5. Tr. at 54. The ALJ described a hypothetical individual of Plaintiff's age, education, and vocational profile, who was limited to light work, but could only occasionally stand or walk, climb stairs, stoop, kneel, crouch, and crawl, frequently sit, balance, handle or finger, and never climb ladders, ropes, and scaffolds. Tr. at 55. In addition, the individual could perform simple, routine, repetitive tasks, but not at a production rate pace and with only routine changes to the workplace. Id. Finally, the individual could work in a job without extreme heat and no exposure to unprotected heights or heavy machinery. Id.
The ALJ assumed the hypothetical individual could not perform the PRW, but inquired whether there were other jobs in the national economy that could be performed. Id. The VE testified the individual could perform certain positions at the light exertional level with the specified restrictions due to the way they are performed. Id. She provided three positions, all light with an SVP of 2: a ticket printer and tagger, DOT number 652.685-094, a spark plug assembler, DOT number 729.684-046, and ticketer, DOT number 229.587-018. Tr. at 55-56. The VE testified there were 299,000 jobs, 215,000 jobs, and 1,000,000 jobs nationally, respectively. Id.
The ALJ posed a second hypothetical with the same limitations, but a reduced exertional level of sedentary. Tr. at 56. The VE responded the individual would be able to perform work, all with an SVP of 2, as a table worker, DOT number 739.687-182, assembler, DOT number 734.687-018, and food and beverage order clerk, DOT number 209.567-014, with 495,000 jobs, 299,000 jobs, and 248,000 jobs available nationally, respectively. Tr. at 56-57.
Plaintiff's counsel inquired whether the jobs that the VE had provided for the first hypothetical would be eliminated should the person be unable to stand less than two hours. Tr. at 57. The VE testified it would eliminate all jobs. Id.
Plaintiff's counsel also inquired whether difficulty relating to others would affect the jobs the VE testified were available. Tr. at 57. The VE testified an individual with this limitation would be unable to perform on a full-time basis. Tr. at 58.
Plaintiff's counsel asked whether the jobs that the VE provided in the second hypothetical would be affected if the individual was unable to handle the manipulation of objects or finger. Id. The VE testified an individual with this limitation would not be able to perform the jobs provided for the sedentary level. Id.
Plaintiff's counsel also asked about the standard number of breaks allowed during an eight-hour workday. Id. The VE testified an employer would allow two breaks and a lunch period, but any additional breaks would be considered excessive and preclude full-time employment. Id. Finally, Plaintiff's counsel inquired whether an individual's need for a cane at all times while standing or walking would impact the jobs provided. Id. The VE testified the jobs that required light exertion would be affected, but not the jobs at the sedentary exertional level. Id.
The VE confirmed her testimony had been consistent with the DOT, aside from the explanations she provided. Tr. at 56.
2. The ALJ's Findings
In her decision dated October 18, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
2. The claimant has not engaged in substantial gainful activity since March 22, 2013, the alleged onset date (20 CFR 404.1571, et seq.).
3. The claimant has the following severe impairments: multiple sclerosis, carpal tunnel syndrome, and depression/anxiety (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, and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than a full range of light work as defined in 20 CFR 404.1567(b). Light exertional work is described by the Commissioner of the Social Security Administration as requiring lifting/carrying of up to 20 pounds occasionally and 10 pounds frequently as well as standing, walking, and sitting for six hours in an 8-hour workday. The claimant can never climb ladders/ropes/scaffolds, but she can occasionally stand/walk as well as climb ramps/stairs, stoop, kneel, crouch, and crawl. She can frequently sit and handle/finger. The claimant must have no exposure to extreme heat, unprotected heights, or heavy machinery. She is capable of performing simple, routine, repetitive tasks in a work environment that does not require production-rate pace and where there are only routine changes in the workplace.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 15, 1970, and was 43 years old, which is defined as a younger individual aged 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (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).Tr. at 16-26. II. Discussion
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 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from March 22, 2013, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to conduct a proper RFC assessment;
2) the ALJ failed to give proper weight to the opinions of her treating and examining physicians regarding the nature and severity of her impairments;
3) the ALJ erred in relying on the testimony of the VE, as the hypothetical question posed did not include all of her limitations and an apparent conflict was not resolved; and
4) the ALJ erred in finding she was not disabled because the burden at step five was not met.
The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) defines disability as:
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 months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish her impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, she may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which [s]he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Medical Opinions and RFC Assessment
The undersigned notes Plaintiff combined her first and second arguments within her brief. [ECF No. 20 at 10].
Plaintiff argues the ALJ erred in her RFC determination by giving limited weight to the opinions of Dr. Castellone, Dr. Lucas, and Dr. Spivey and discounting her subjective allegations for noncompliance when she was unable to afford treatment, as well as overlooking her cane use and hand limitations. [ECF No. 20 at 10-14].
The Commissioner responds the ALJ provided a rationale, supported by substantial evidence that conformed with the regulations, for the weight accorded to the medical opinions and adequately accounted for Plaintiff's impairments in the RFC assessment, noting she did not show a cane was medically necessary and she failed to obtain the recommended EMG or comply with treatment. [ECF No. 23 at 21-27].
Plaintiff replies the ALJ failed to consider the numerous medical records reflecting Dr. Castellone and Dr. Lucas' treatment of her conditions for multiple years or acknowledge she explained that she was unable to afford treatment at times, such that she was unable to comply. [ECF No. 32 at 1-5].
To adequately assess an individual's RFC, the ALJ must determine the limitations imposed by her impairments and how those limitations affect her ability to perform work-related physical and mental abilities on a regular and continuing basis. SSR 96-8p, 1996 WL 362207. The ALJ should consider all the claimant's allegations of physical and mental limitations and restrictions, including those that result from severe and nonsevere impairments. Id. "Social Security Ruling 96-8p explains that the 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).'" Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). In addition, the ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p. "The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medial and other evidence." Id.
The applicable regulations direct ALJs to accord controlling weight to treating physicians' opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). "[T]reating physicians are given 'more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'" Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
Effective March 27, 2017, the Social Security Administration rescinded SSR 96-2p, and it no longer applies the "treating physician rule." Rescission of SSR 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (March 27, 2017); 20 C.F.R. § 404.1520c (2017). The undersigned will review the ALJ's decision under the old rules codified by 20 C.F.R. § 404.1527 because the new regulation is not retroactive and Plaintiff filed her claim before it took effect. See 82 Fed. Reg. 15,263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017"); see also 20 C.F.R. § 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply").
If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's evaluation of the treating source's opinion does not end with the determination that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c), which include "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527).
ALJs are not required to expressly discuss each factor set forth in 20 C.F.R. § 404.1527(c), but their decisions should demonstrate they considered and applied all the factors and accorded each opinion appropriate weight in light of the evidence of record. See Lollis v. Berryhill, No. 9:16-CV-2566-DCN, 2017 WL 4157141, at *2 (D.S.C. Sept. 18, 2017) (stating the "Fourth Circuit has not mandated that the ALJ expressly discuss each factor, and another court in this district has held that 'an express discussion of each factor is not required as long as the ALJ demonstrates that [s]he applied the . . . factors and provides good reasons for h[er] decision.'" (quoting Hendrix v. Astrue, No. 1:09-01283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010)).
If the ALJ issues a decision that is not fully favorable, her decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight she accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2). However, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). This court should not disturb an ALJ's determination as to the weight assigned "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).
In view of the foregoing authority, the undersigned considers Plaintiff's specific allegations of error.
a. Opinions of Dr. Castellone and Dr. Lucas
As provided in the summary of the medical records above, Dr. Castellone and Dr. Lucas provided numerous opinions regarding Plaintiff's inability to work. See Tr. at 575-76 (providing a statement of functionality by Dr. Lucas that Plaintiff had MS as supported by a brain MRI and lumbar puncture procedure, symptoms of numbness, weakness, and falls, and permanent limitations on August 27, 2013); 573 (providing Dr. Castellone's statement that Plaintiff was unable to work due to MS and other issues that had resulted in anxiety and generalized weakness on October 10, 2013); 539-40 (providing Dr. Castellone's opinion that Plaintiff was unable to "walk more than one hundred feet nonstop without aggravating an existing medical condition, including the increase of pain," for her disabled placard application on February 14, 2014); 605-11 (providing Dr. Castellone's detailed statement regarding Plaintiff's disability—noting his treatment experience with her, the various symptoms she suffered (pain, numbness, and fatigue), her inability to perform activities for extended periods of time, her medications and side effects, and concluding she was "completely and totally disabled")—on May 8, 2014); 541-45 (providing Dr. Castellone's medical opinion regarding Plaintiff's ability to do work-related physical activities in a regular setting—noting she was limited to lifting less than ten pounds, sitting, standing and walking for less than two hours, with frequent breaks and the ability to lie down every two hours needed, as supported by MRIs, x-rays, and a nerve conduction study (among others), and ultimately concluding Plaintiff was unable to return to work "at all"—on July 15, 2014); 612-13 (providing Dr. Castellone's opinion that Plaintiff's symptoms and limitations were unchanged since his previous opinion in July 2014 and she was still unable to work on April 20, 2016); 614-20 (providing Dr. Lucas' opinion, after Plaintiff's recent MRI, that she was still unable to work on June 3, 2016).
Plaintiff argues the ALJ failed to explain why these opinions were not worthy of significant weight given the factors that should be considered according to 20 C.F.R. § 404.1527. [ECF No. 20 at 10-14]. In addition, Plaintiff argues the ALJ erred in discounting her subjective reports to due to her noncompliance with Dr. Lucas' ordered treatment. Id. The Commissioner argues the ALJ properly afforded partial or little weight to these opinions after reviewing the record as a whole. [ECF No. 23 at 21-27].
The ALJ gave partial or little weight to the opinions of Dr. Castellone and Dr. Lucas explaining,
The undersigned notes the ALJ assigned controlling weight to "Dr. Castellone's April 2014 opinion, in which he stated that [Plaintiff's] depression/anxiety was relieved with prescribed medications [(] Exhibit 3F). It has been determined that Dr. Castellone is a treating physician and his conclusion is consistent with the medical evidence as a whole." Tr. at 24. This opinion was regarding Plaintiff's anxiety and depression. See Tr. at 495.
Partial weight has also been given to Dr. Castellone's July 2014 opinion found in Exhibit 7F because the extreme functional limitations are not consistent with the record as a whole and not supported with his own relevant evidence that showed [Plaintiff's] condition was stable and even improved with treatment compliance.
I give little weight to the April 2016 opinion from Dr. Lucas that [Plaintiff] is incapable of working at this time due to her MS (Exhibit 13F). Dr. Lucas did not give any specific functional limitations and his statement of "not at this time" was not defined.
Little weight is given [to] the statements provided by Dr. David Castellone in Exhibit 14F. Dr. Castellone did not support his
opinions with explanations for the described functional limitations. Further, he lacked program knowledge.Tr. at 24.
Little weight is accorded to the June 2016 opinion of Dr. John Lucas because this opinion did not provide limitations and/or explanations as to why diagnoses precluded all types of work activity. Additionally, his opinion was internally inconsistent in that recent medical evidence showed that [Plaintiff's] condition had improved with her medications regime.
Because Dr. Castellone and Dr. Lucas were Plaintiff's treating physicians, their opinions were presumptively entitled to controlling weight. See 20 C.F.R. § 404.1527(c) and SSR 96-2p. In its review, the undersigned focuses on whether the ALJ's opinion is supported by substantial evidence or there was legal error, because its role is not to "undertake to re-weigh conflicting evidence, make credibility determinations or substitute [its] judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). Nevertheless, the undersigned recommends the court find the ALJ did not adequately consider these opinions in accordance with the provisions of 20 C.F.R. § 404.1527(c) and SSR 96-2p for several reasons. Although, the ALJ provided a few reasons to support her decision to accord partial or little weight to the opinions of Dr. Castellone and Dr. Lucas, she ignored the primary basis of the opinions, did not adequately consider supporting evidence in their treatment notes, and did not provide specifics to allow the undersigned to undertake a meaningful review.
First, the ALJ failed to weigh all of the opinions provided by Dr. Castellone and Dr. Lucas, despite acknowledging the existence of some of these opinions earlier in her decision. See, e.g., Tr. at 20 (noting Dr. Lucas opined Plaintiff was disabled in August 2013). Even the Commissioner acknowledges in her brief that additional opinions were rendered by Plaintiff's treating physicians. [ECF No. 23 at 6-9 (noting Dr. Castellone provided opinions in October 2013 and February 2014)]. Yet, the ALJ did not assign weight to them. Failure to assign weight to these opinions violates the regulations, which state "[r]egardless of its source, we will always consider the medical opinions . . . [and] we will evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(b),(c); see also 20 C.F.R. § 404.1527(a)(1) ("Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.").
Moreover, failure to do so is contrary to case law in the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"). See Bogley v. Berryhill, 706 F. App'x 112, 113 (4th Cir. 2017) ("We cannot determine if findings are unsupported by substantial evidence unless the [ALJ] explicitly indicates the weight given to all of the relevant evidence."). This error cannot be deemed harmless because the opinions consistently opine Plaintiff was unable to work or had permanent limitations, supporting the other opinions rendered, and conflict with the ALJ's RFC assessment. See Tanner v. Comm'r of Soc. Sec., 602 F. App'x 95, 100 (4th Cir. 2015) (finding harmless error when the ALJ failed to assign weight to an opinion, but the RFC determination accepted most of the opinion's findings).
Second, although the ALJ acknowledged a treatment relationship existed with Dr. Castellone and Dr. Lucas (Tr. at 16-24), her decision does not reflect consideration of the frequency and length of the treatment relationships as required by 20 C.F.R. § 404.1527(c)(2)(i). Of note, the ALJ failed to consider that Plaintiff visited Dr. Castellone over thirty times in four years and visited Dr. Lucas over ten times in three years. See Tr. at 367, 276, 365, 363, 361, 358, 356, 354, 349, 341, 339, 333, 330, 327, 325, 323, 321, 573, 317, 315, 312, 311, 495, 509, 506, 556, 553, 550, 547, 590, 382; 267, 303, 301, 299, 296, 293, 290, 584, 579, 599. "Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion," as he has developed a "longitudinal picture" of the impairment. 20 C.F.R. § 404.1527(c)(2)(i). The ALJ failed to do so here.
In addition, the ALJ failed to acknowledge the nature and extent of the treatment relationships, as Dr. Castellone was Plaintiff's primary care provider and treated her for multiple ongoing issues, such as chronic neck and back pain, and Dr. Lucas was her neurologist, treating her specifically for MS. See Tr. at 267, 367. "Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories." 20 C.F.R. § 404.1527(c)(2)(ii). Again, here, the ALJ failed to do so.
In addition, the ALJ summarily concluded Dr. Castellone and Dr. Lucas' opinions were inconsistent with or not supported by the record. See Tr. at 24; see also 20 C.F.R. § 404.1527(c)(3), (4).
As recently explained by the Fourth Circuit, consistency means "how consistent the 'medical opinion is with the record as a whole,'" and supportability is found "in the form of the quality of the explanation provided for the medical opinion and the amount of relevant evidence—'particularly medical signs and laboratory findings'—substantiating it." Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 256 (4th Cir. 2017). "Additionally, any other factors 'which tend to support or contradict the medical opinion' are to be considered." Id. (quoting 20 C.F.R. § 404.1527(c)(6)). "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
Moreover, "[o]ur circuit precedent makes clear that it is not our role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record." Fox v. Colvin, 632 F. App'x 750, 755-56 (4th Cir. 2015) (citing Mascio, 780 F.3d at 638; see also Radford, 734 F.3d at 296); see also id. (citing Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987) ("[I]t is simply unacceptable for the ALJ to adopt one diagnosis over another without addressing the underlying conflict."); Smith v. Heckler, 782 F.2d 1176, 1181 (4th Cir. 1986) (explaining that the ALJ needs to filter through the evidence and explain "why" the ALJ made the decision); Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir.1985) (per curiam) (stating that an ALJ has a "duty of explanation" of what informed his decision)).
Here, the ALJ discounted Dr. Castellone and Dr. Lucas' opinions with vague reasoning, failed to cite any specific support in the record for her statements, and ignored relevant evidence.
For example, the ALJ assigned little weight to Dr. Castellone's statement on May 8, 2014, wherein he provided four pages, spanning several paragraphs, that detailed his knowledge of Plaintiff's treatment for various issues, stated her limitations, noted her list of medications and their side effects, and concluded Plaintiff was disabled and unable to work. Tr. at 24, 607-611. In contrast, the ALJ concluded "Dr. Castellone did not support his opinions with explanations for the described functional limitations. Further, he lacked program knowledge." Tr. at 24. This finding ignores Dr. Castellone submitted medical records with his statement, which are available in the administrative record of this case, and he noted "[t]his statement [is] based upon my medical education and experience and based upon my specific knowledge of [Plaintiff's] problems and treatment history." Tr. at 607. The ALJ's note that Dr. Castellone "lacked program knowledge" is unclear, unsupported, and unworthy of further discussion. Tr. at 24.
The ALJ afforded little weight to Dr. Lucas' April 2016 opinion, in which he stated, "I do not believe [Plaintiff] is capable [of] working at this time due to her [MS]. By definition this illness tends to worsen over time." Tr. at 24, 603. The ALJ noted Dr. Lucas "did not give any specific functional limitations" and did not define "at this time." In doing so, the ALJ ignored the statement was dated April 7, 2016, just prior to the hearing date, and ignored his discussion within the same note that Plaintiff had two total relapses of MS, numbness and weakness in her left arm, fatigue, and weakness in her left leg. Tr. at 599.
Furthermore, the ALJ assigned partial or little weight to Dr. Castellone's July 2014 opinion and Dr. Lucas' June 2016 opinion because they were inconsistent with the record, as there was some improvement with treatment and medication or Plaintiff's condition was noted as stable. Tr. at 24. However, this conclusion ignores Dr. Castellone's treatment note made the same day as his opinion, noting Plaintiff had left-side numbness, pain in her arm, back, and leg, and was "really getting worse." Tr. at 506. It also ignores Dr. Lucas' statement within his opinion that he had reviewed the recent May 2016 MRI and, although it depicted improvement in one area, there was a "new right frontal lesion" to address. Tr. at 616.
Moreover, treating physicians Dr. Castellone and Dr. Lucas never opined Plaintiff had improved to the point of working again. To the contrary, up until and even after the hearing, they consistently reiterated Plaintiff was unable to work due to her conditions. In Kellough v. Heckler, the Fourth Circuit noted references in the record to "feels well" and "normal activity" must be read in context and were not a substantial basis for rejecting as incredible the claimant's subjective complaints of exertional limitation." 785 F.2d 1147, 1153 (4th Cir. 1986); see Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2011) ("Dr. Oh's statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace." (citing Kellough, 785 F.2d at 1153)).
Likewise, here, the record contains no explanation for the meaning of Plaintiff's improvement and warrants remand because the ALJ failed to consider the notations in light of their context and surrounding records, including Dr. Castellone and Dr. Lucas' various subsequent opinions consistently opining that Plaintiff remained unable to work based on her continued symptoms and complaints of pain, fatigue, weakness, and other issues reflected in the record. See, e.g, Tr. at 267 (noting fatigue, pain, and numbness in March 2013), 350 (noting pain and tenderness in her right cervical area and uncontrolled MS in April 2013), 521 (noting tenderness in her extremities in January 2014), 310 (noting in an examination that Plaintiff was "weak [or] tender all over" in March 2014), 506 (noting Plaintiff was "really getting worse," her spine was tender, and her neurological components were "unsteady," in July 2014), 550 (noting Plaintiff was tender in her spine, exhibited weakness, and reported pain in November 2014), 548 (assessing uncontrolled MS in January 2015), 584 (noting "remitting relapsing" MS by Dr. Lucas in August 2015), 579 (noting Plaintiff complained of fatigue, leg and left arm weakness in February 2016). Even more concerning, after Plaintiff's most recent MRI in May 2016, Dr. Lucas stated, "I reviewed with the patient there is only a single new lesion on her MRI in comparison to 2013 which is encouraging. She certainly does have definitive [MS] and I again voiced my opinion that I do not think she is capable of working due to her [MS], chronic back pain, [and] fatigue related to her [MS]." Tr. at 619 (June 2016 opinion). Yet, the ALJ disregarded Dr. Lucas' opinion as "internally inconsistent" with the "recent medical evidence" that showed Plaintiff's condition "had improved with her medications regime." Tr. at 24. The ALJ failed to provide an adequate explanation for her decision not to accord greater weight to the treating physicians' opinions.
The ALJ also pointed to some normal findings in her overall decision, but these findings do not refute that functional limitations associated with MS, carpal tunnel syndrome, and depression or anxiety—all found to be severe impairments by the ALJ—would significantly limit Plaintiff's ability to complete tasks in a work environment. Tr. at 16. See Lewis, 858 F.3d at 869 (noting "the ALJ did not indicate how the results he cited were relevant to the functional limitations [the plaintiff] suffered as a result of her chronic, non-exertional pain in her left shoulder" and "[t]he ALJ does not explain, for instance, how [the plaintiff's] normal gait bears any nexus to her complaint of chronic shoulder pain").
See Multiple Sclerosis, U.S. National Library of Medicine Science, available at https://medlineplus.gov/multiplesclerosis.html (noting MS is a nervous system disease that affects the brain and spinal cord and symptoms include muscle weakness, trouble with coordination and balance, numbness, and prickling, or thinking and memory problems) (last visited Dec. 28, 2018). A court may take judicial notice of factual information located in postings on government websites. See Phillips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating a court may "take judicial notice of matters of public record").
The ALJ also ignored consistency between the opinions of Dr. Castellone and Dr. Lucas with other sources, that recognized Plaintiff's physical impairments to some extent. Tr. at 67-70 (providing Dr. Hutson's opinion that Plaintiff could stand or walk for only two hours and was limited in reaching overhead due to her MS and left-sided weakness or numbness); 70 (providing Dr. Hutson's review of Plaintiff's subjective allegations and noting her "allegations are supported in the longitudinal record with exams, labs, x-rays and imaging studies along with functional studies"); 504 (providing Dr. Spivey's opinion Plaintiff "may be experiencing a decrement in intellectual functioning as a result of her [MS]"). In fact, the ALJ assigned little or partial weight to every physical medical opinion she considered. See, e.g., Tr. at 23-24 (assigning partial or little weight to state agency medical consultants and both of Plaintiff's treating physicians). However, she assigned great weight to the state agency psychologist consultants, while curiously noting those opinions were "consistent with and supported by other medical evidence, particularly that of the consultative examiners, Dr. Castellone and Dr. Lucas." Tr. at 23.
Finally, the ALJ did not appear to properly consider the entire record in evaluating the consistency of Dr. Castellone and Dr. Lucas' opinions because she discredited documentation of Plaintiff's continuous complaints, stating "the objective findings [did] not confirm that these impairments [were] of such a severity that they could reasonably be expected to produce the degree of pain and functional limitations alleged." Tr. at 24. The regulations do not permit the ALJ's dicreditation, as the ALJ "will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements." 20 C.F.R. § 404.1529(c)(2); see Lewis v. Berryhill, 858 F.3d at 866 ("Thus, [the plaintiff's] subjective evidence of pain intensity cannot be discounted solely based on objective medical findings.").
In addition, Plaintiff asserts the ALJ incorrectly discounted her subjective allegations due to treatment noncompliance without considering her noncompliance was due to her inability to afford the MRI that Dr. Lucas wished her to obtain. [ECF No. 20 at 13].
Pursuant to SSR 16-3p, "we will consider and address reasons for not pursuing treatment that are pertinent to an individual's case," including whether "[a]n individual may not be able to afford treatment and may not have access to free or low-cost medical services." The Fourth Circuit also prohibits ALJs from denying benefits based on a failure to follow prescribed treatment where the claimant lacks the financial resources to obtain treatment. See Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) ("[I]t flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.").
This ruling superseded SSR 96-7p on March 28, 2016. See 82 Fed. Reg. 49462, 49468 n. 27 ("Our adjudicators will apply this ruling when we make determinations and decisions on or after March 28, 2016. When a Federal court reviews our final decision in a claim, we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review. If a court finds reversible error and remands a case for further administrative proceedings after March 28, 2016, the applicable date of this ruling, we will apply this ruling to the entire period at issue in the decision we make after the court's remand. Our regulations on evaluating symptoms are unchanged.").
Here, details of Plaintiff's financial struggles were provided throughout the record and specifically show she informed Dr. Lucas she was unable to afford the ordered MRI. See, e.g., Tr. at 40-42, 52 (containing the ALJ's inquiry during the hearing as to why Plaintiff was non-compliant and her testimony that she was unable to afford the MRI despite her attempts); accord Tr. at 580, 599 (Dr. Lucas' notes reflecting Plaintiff's assertion that she was unable to afford the MRI); Tr. at 36 (reflecting Plaintiff's testimony that she was receiving food stamps). Moreover, when Dr. Lucas recommended St. Francis as a charity available to possibly pay for the MRI on April 7, 2016, Plaintiff contacted it and already had an appointment scheduled for May 3, 2016, when she attended the hearing before the ALJ on April 21, 2016. Tr. at 52, 603, 615. Subsequently, the MRI was conducted on May 25, 2016. Tr. at 615.
Nevertheless, the ALJ's decision relied upon Plaintiff's lack of consistent treatment to discount her allegations. She noted the medical evidence only partially supported her allegations, but "the extent of the functional limitations was not supported by the medical evidence of record, and [Plaintiff] had been non-compliant with follow-up and/or recommended treatment on multiple occasions." Tr. at 20. The ALJ failed to address the "reasons for not pursuing treatment" pursuant to SSR 16-3p. In particular, the ALJ failed to address the uncontradicted evidence in the record relaying Plaintiff was "not be able to afford treatment," as required by SSR 16-3p and Fourth Circuit precedent. See, e.g., Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) ("A claimant may not be penalized for failing to seek treatment she cannot afford . . . .").
The ALJ may conclude Plaintiff is not disabled, but she must explain her decision, evaluate all medical opinions, and consider the factors dictated by 20 C.F.R. § 404.1527. See Monroe, 826 F.3d at 189 (stating the ALJ must "build an accurate and logical bridge from the evidence to [her] conclusion"); see also Brown, 873 F.3d at 260, 271 (noting "treating and examining sources consistently opined that [the plaintiff's] chronic pain rendered him unable to work" and finding "the ALJ erred by crediting [the non-examining source] and rejecting the opinions of [the plaintiff's] treating and examining sources"). Because the ALJ's evaluation of Dr. Castellone and Dr. Lucas' opinions does not reflect careful weighing of the relevant factors in 20 C.F.R. § 404.1527, she failed to assign weight to all opinions, and improperly discounted Plaintiff's subjective allegations, the undersigned recommends the court find it is unable to determine whether substantial evidence supports the ALJ's decision and remand this case.
See Fox, 632 F. App'x at 756 (finding remand warranted because the ALJ provided "less weight" to an opinion "because the ALJ believed these limitations were 'not well[-]supported by the medical record.' Such a cursory and conclusory analysis does not provide any reason, let alone a 'good reason' why the ALJ concluded that [the] opinion was inconsistent with other medical findings. 20 C.F.R. § 404.1527(c)(2); see also SSR 96-2p. Once more, we are confronted with whether we can give meaningful review to the ALJ's decision. Yet again, we cannot." (citing Radford, 734 F.3d at 296)).
b. Opinion of Dr. Spivey
On June 13, 2014, Dr. Spivey performed a consultative examination of Plaintiff. Tr. at 501-05. He noted Plaintiff's thought processes were logical and coherent, attention and concentration were fair, and psychomotor agitation was mild. Id. Diagnostic tests revealed Plaintiff's full-scale IQ was 76, which was in the borderline functioning range, and he concluded she may be experiencing a decrement in intellectual functioning due to MS. Id. He diagnosed major depressive disorder, generalized anxiety disorder, and rule out possible neurocognitive disorder due to MS. Id. Dr. Spivey opined Plaintiff would have difficulty relating well to others and maintaining stamina and persistence due to low energy and attention problems, but she would be capable of understanding simple instructions and performing simple tasks. Id.
The ALJ assigned partial weight to Dr. Spivey's opinion because, "as a consultative examiner, he participated in only a short treatment relationship and his opinion was not consistent with the other medical evidence as a whole." Tr. at 24.
The ALJ again failed to consider the relevant factors for evaluating opinion evidence required by 20 C.F.R. § 404.1527(c). First, a consultative examiner is not considered to be a treating source. 20 C.F.R. § 404.1527(a)(2) ("We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.").
Second, in assigning little weight to Dr. Spivey's opinion and great weight to the non-examining state agency psychologists' opinions, the ALJ failed to acknowledge "[g]enerally, we give more weight to the medical opinion of a source who has examined you than to the medical opinion of a medical source who has not examined you." 20 C.F.R. § 404.1527(c)(1). Moreover, the ALJ's position is further undermined because one of these non- examining state agency psychologists' opinions accorded great weight to Dr. Spivey's opinion. Tr. at 66-67.
Finally, the undersigned notes the ALJ stated the non-examining state agency psychologists' opinions were entitled to great weight because "[t]hese opinions [were] consistent with and supported by other medical evidence, particularly that of the consultative examiners, Dr. Castellone, and Dr. Lucas." Tr. at 23. As discussed above, Dr. Castellone and Dr. Lucas were Plaintiff's treating physicians, not consultative examiners.
In light of the foregoing and as noted above, the undersigned is constrained to recommend the ALJ did not evaluate and weigh Dr. Spivey's opinion in accordance with the relevant regulations and SSR.
2. Additional Allegations of Error
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. § 404.1545(a)(1)) and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
The undersigned notes Plaintiff alleges an additional error due to an apparent conflict between the VE's testimony providing positions and the DOT's description of same with a GED reasoning level of two. The undersigned notes the ALJ may wish to consider on remand that both state agency psychological consultants, whose opinions she gave great weight to, opined Plaintiff would be able "carry ou[t] short and simple instructions, but may have difficulties carrying out more detailed instructions." Tr. at 71, 88-89. The Fourth Circuit has recently noted, "it is not entirely clear to us that a person limited to short and simple instructions can also carry out Level 2 jobs that include 'detailed but uninvolved' instructions." Keller v. Berryhill, No. 17-2248, 2018 WL 6264813, at *4 (4th Cir. Nov. 29, 2018).
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. January 3, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
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).