Opinion
C. A. 1:20-3262-JD-SVH
08-12-2021
Kristi P., [1] Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
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) and § 1383(c)(3) 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 he 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 July 5, 2013, Plaintiff protectively filed an application for DIB in which she alleged her disability began on January 13, 2013. Tr. at 101, 157- 58. Her application was denied initially and upon reconsideration. Tr. at 102- 05, 157-58. On September 11, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ann G. Paschall. Tr. at 45-77 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 12, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 23-44. Subsequently, the Appeals Council granted review and issued an unfavorable decision on January 31, 2017. Tr. at 1-9. Thereafter, Plaintiff brought an action seeking judicial review of the Commissioner's decision in this court. Tr. at 413.
On June 25, 2018, the court issued an order reversing the Commissioner's decision and remanding the case for further administrative proceedings. Tr. at 447-48. The Appeals Council subsequently remanded the case to the ALJ. Tr. at 449-53. Plaintiff appeared for a second hearing before the ALJ on February 13, 2019. Tr. at 355-80. On June 3, 2019, the ALJ issued another unfavorable decision. Tr. at 334-54. The Appeals Council denied Plaintiff's request for review. Tr. at 327-33. On September 14, 2020, Plaintiff brought an action seeking judicial review of the Commissioner's decision in this court. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 43 years old on her date last insured (“DLI”) for DIB. Tr. at 346. She completed high school. Tr. at 362. Her past relevant work (“PRW”) was as a customer service supervisor. Tr. at 364. She alleges she has been unable to work since January 13, 2013. Tr. at 157.
2. Medical History
On January 14, 2013, Plaintiff presented to MedNow Urgent Care for dull, persistent left knee pain that had started one day prior. Tr. at 250. Lucas H. Davis, M.D. (“Dr. Davis”), observed Plaintiff to have full range of motion (“ROM”), 5/5 strength with flexion and extension, no warmth or erythema in the joints, and normal gait. Tr. at 251. He noted negative Lachman test and positive McMurray test. Id. He diagnosed derangement of the medial meniscus and instructed Plaintiff to follow up with her primary care physician or an orthopedic surgeon. Tr. at 252.
Plaintiff underwent magnetic resonance imaging (“MRI”) of her left knee on January 16, 2013, which showed a large Baker's cyst, joint effusion, and osteoarthritis of the knee joint. Tr. at 255. It was negative for a meniscal tear. Id.
Plaintiff presented to orthopedist Mark A. Pierce, M.D. (“Dr. Pierce”), for evaluation of left knee pain on January 24, 2013. Tr. at 269. She reported several years' history of knee pain that had worsened two weeks prior without injury. Id. She described the pain as being localized in the popliteal fossa. Id. Dr. Pierce observed Plaintiff to have posterior knee pain on forced flexion. Id. X-rays of Plaintiff's left knee showed no acute fracture, dislocation, or lytic lesion. Id. Dr. Pierce indicated Plaintiff's MRI showed a large Baker's cyst, a small joint effusion, and early arthritic changes of the medial and lateral compartments. Id. He referred Plaintiff for aspiration and injection of the Baker's cyst. Id.
On January 31, 2013, Christopher Clemow, M.D. (“Dr. Clemow”), performed ultrasound-guided aspiration of the Baker's cyst. Id. He authorized Plaintiff to return to work the following day and advised her to follow up with Dr. Pierce in three weeks. Id.
On February 12, 2013, Plaintiff presented to the emergency room (“ER”) at AnMed Health with back and right leg pain. Tr. at 621. She described back pain over the prior week that was worse on the right, numbness in the right foot, and numbness and tingling in the right leg. Tr. at 623. She indicated movement worsened her symptoms. Id. Keith Nall, M.D. (“Dr. Nall”), observed Plaintiff to have mild tenderness to palpation (“TTP”) to her lumbar spine, but no other abnormal findings. Id. X-rays of Plaintiff's lumbar spine showed minimal-to-mild degenerative spondylosis and mild degenerative joint disease (“DJD”) in the facet joints and lower lumbar spine. Tr. at 629. Dr. Nall assessed a back sprain and degenerative disc disease (“DDD”) and ordered Motrin, Morphine, and Phenergan prior to discharging Plaintiff. Tr. at 623, 626.
On February 14, 2013, Plaintiff reported her left knee pain had improved, but not resolved, following aspiration and injection of the Baker's cyst. Tr. at 267. Dr. Pierce noted very mild joint-line tenderness and ROM from zero to 135 degrees. Id. He indicated Plaintiff's MRI showed early arthritic changes, but no meniscal pathology. Id. He felt that Plaintiff's knee “should continue to improve if she start[ed] to get up and around on her feet, but she still [was] not quite ready to get back to work.” Id. He indicated Plaintiff should remain out of work for an additional 10 days, continued Mobic, and prescribed a Medrol Dosepak. Id.
On March 14, 2013, Plaintiff reported only having received a week or two of relief following aspiration and injection of the Baker's cyst and reported recurrent knee pain with activity. Tr. at 266. Dr. Pierce noted full thickness in the popliteal fossa, tenderness along the medial and lateral joint lines, and ROM limited from zero to 115 degrees due primarily to a soft tissue mass. Id. He stated Plaintiff's pain was “a little more” than he would expect “for the amount of arthritis that she ha[d].” Id. He treated left knee pain with an intra-articular steroid injection. Id.
Plaintiff reported no relief from the steroid injection during a follow-up visit on April 11, 2013. Tr. at 265. Dr. Pierce observed medial joint line pain on forced flexion and medial, but not lateral, tenderness. Id. He ordered lab studies and indicated he would review Plaintiff's MRI again, as she continued to report pain despite Baker's cyst aspiration and multiple steroid injections. Id.
Plaintiff continued to report localized pain in the medial aspect of her left knee on April 18, 2013. Tr. at 264. Dr. Pierce indicated her bloodwork was normal. Id. He noted trace effusion and medial joint line tenderness, but stated Plaintiff was non-tender laterally. Id. He observed Plaintiff to have pain on forced flexion and with McMurray testing. Id. He assessed left knee pain and recommended diagnostic arthroscopy. Id.
Plaintiff presented to physician assistant Stephanie Senger (“PA Senger”), for an evaluation on April 23, 2013. Tr. at 256. PA Senger observed Plaintiff to have extreme TTP along the medial joint line of the left knee, to have ROM from zero to 90 degrees of flexion, to demonstrate increased medial knee pain with flexion, and to have positive McMurray's sign. Tr. at 257. She indicated Plaintiff was 63 inches tall and weighed 324 pounds. Id. She stated the MRI was “significant for increased signal within the meniscus, but no well-defined meniscal tear.” Id. She discussed treatment options, and Plaintiff opted to proceed with surgery. Id.
Dr. Pierce performed left knee arthroscopic chondroplasty and limited synovectomy on April 29, 2013. Tr. at 259-61. He diagnosed left knee chondromalacia and left knee plica syndrome. Tr. at 259.
On May 14, 2013, Dr. Pierce noted well-healed wounds to the left knee with no effusion and recorded left knee ROM from zero to 105 degrees. Tr. at 263. He continued Plaintiff on Mobic and Ultram. Id. He informed Plaintiff that her knee would continue to limit her activities and that she would eventually require knee replacement. Id. He discussed a potential need for vocational rehabilitation. Id.
Dr. Pierce noted little improvement during Plaintiff's follow-up visit on June 13, 2013. Tr. at 262. He observed well-healed surgical wounds, no obvious effusion, and ROM from zero to 120 degrees. Id. He assessed left knee chondromalacia. Id. He stated Plaintiff had not benefitted from prior steroid injections and could not afford to pursue viscosupplementation. Id. He stated it would be difficult for Plaintiff to return to any work that required prolonged standing. Id.
On August 9, 2013, state agency medical consultant Matthew Fox, M.D. (“Dr. Fox”), completed physical residual functional capacity (“RFC”) assessments. Tr. at 84-86. During the period from January 13, 2013, through April 28, 2013, he indicated Plaintiff had the RFC to: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; and frequently push and pull with the left upper extremity. Tr. at 84-85. For the period from April 29, 2013, through April 29, 2014, he assessed Plaintiff as having the RFC to: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently push and pull with the left lower extremity, climb ramps and stairs, and stoop; and occasionally kneel, crouch, crawl, and climb ladders, ropes, and scaffolds. Tr. at 85-86.
On August 13, 2013, Plaintiff reported slight improvement in her knee pain, after having lost 22 pounds. Tr. at 275. However, she indicated she remained unable to stand or sit for more than 15 to 20 minutes at a time. Id. Dr. Pierce observed reduced ROM from zero to 95 degrees. Id. He assessed left knee DJD, refilled Plaintiff's prescriptions, and advised her to continue to use a patellofemoral stabilization brace. Id. He stated it would be difficult for Plaintiff “to return to any work as she has problems with both standing as well as sitting for anything more than 15 or 20 minutes.” Id. He informed Plaintiff that she would be limited in her employment options because of her knee and was not a candidate for arthroscopic surgery at that time because of her age. Id.
On November 12, 2013, Plaintiff reported she continued to take Ultram and Mobic and work to lose weight. Tr. at 586. She indicated her pain was reasonably tolerable, although it continued to limit her abilities to stand or walk for continuous periods of greater than 20 minutes. Id. Dr. Pierce observed Plaintiff to have left knee ROM from zero to 105 degrees, no effusion, and a mild decrease in point tenderness. Id. He refilled Ultram, Mobic, and Norco and indicated Plaintiff should follow up on an as-needed basis. Id.
A second state agency medical consultant, George Walker, M.D., completed physical RFC assessments on December 23, 2013. Tr. at 95-98. He indicated the same restrictions that Dr. Fox had provided for the period from January 13, 2013, through April 28, 2013. Tr. at 95-96. However, for the period from April 29, 2013, through April 29, 2014, he found that Plaintiff had the following RFC: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of two hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently push and pull with the left lower extremity; use of a cane for long distances and uneven surfaces; frequently stoop and climb ramps and stairs; and occasionally kneel, crouch, crawl, and climb ladders, ropes, and scaffolds. Tr. at 97.
Plaintiff presented to Donald Bryant, M.D. (“Dr. Bryant”), on March 18, 2014. Tr. at 294-96. Dr. Bryant observed TTP of Plaintiff's lumbar spine, anxious mood, and blunted affect. Tr. at 294-95. He noted normal ROM of Plaintiff's lower extremities, no joint deformity, and normal gait, tone, bulk, and strength. Tr. at 294. He assessed backache, obesity, generalized anxiety disorder, benign essential hypertension, and depressive disorder. Id. He administered a Toradol injection and prescribed Celexa, Enalapril, Hydrochlorothiazide, Meloxicam, and Ultram. Tr. at 295-96.
On April 3, 2014, Plaintiff described moderate, achy back pain that was exacerbated by movement. Tr. at 297. She reported her left knee pain was improving. Id. She described moderate, constant, achy pain in her hip that was worsened by walking, but was slowly improving. Id. She also endorsed a cough, congestion, fatigue, weakness, anxiety, change in sleep pattern, and depression. Id. Dr. Bryant observed Plaintiff to weigh 333 pounds and to demonstrate TTP of the lumbar spine. Tr. at 299. He noted Plaintiff had normal gait, normal ROM of her lower extremities, no joint instability, and normal tone, bulk, and strength on motor exam. Id. He described Plaintiff's mood as anxious and her affect as blunted. Tr. at 300. He diagnosed an acute upper respiratory infection, backache, obesity, and benign essential hypertension. Id.
On May 8, 2014, Plaintiff complained of fatigue, back pain, muscle pain and stiffness, localized weakness, tingling, ear pain, sinusitis, nose pain, throat pain, ringing in ears, sore throat, anxiety, changes in sleep pattern, and depression. Tr. at 303, 304. Dr. Bryant noted TTP of the lumbar spine, anxious mood, and blunted affect, but no other significant abnormalities. Tr. at 305-06. He diagnosed backache, obesity, benign essential hypertension, and sciatica and refilled Plaintiff's medications. Tr. at 306-07.
Plaintiff complained of pain in both feet on August 8, 2014. Tr. at 310. She described the pain in her left foot as achy, of moderate intensity, and occurring on an intermittent basis. Id. She indicated her right foot pain was located on the plantar surface. Id. She described it as severe and intermittent. Id. Dr. Bryant observed TTP of Plaintiff's lumbar spine. Tr. at 312-13. X-rays of Plaintiff's lumbosacral spine showed moderate DJD. Tr. at 315. Dr. Bryant diagnosed backache, obesity, benign essential hypertension, sciatica, and pain in the ankle and foot joints. Tr. at 313. He administered injections of Demerol and Phenergan, prescribed Norco and Zanaflex, and refilled Plaintiff's other medications. Tr. at 313-14.
Plaintiff complained of increased back pain on August 18, 2014. Tr. at 317. She indicated the pain was worsened by movement and relieved by nothing. Id. She also endorsed constant, moderate left hip pain, moderate left foot pain, and severe right foot pain and indicated all were worsened by walking and improved by rest. Id. Dr. Bryant again administered Demerol and Phenergan injections. Tr. at 321. He instructed Plaintiff to modify her activities, rest, and apply heat to her back. Tr. at 320.
Plaintiff followed up with Dr. Bryant on June 1, 2015. Tr. at 323-25. Dr. Bryant prescribed Cyclobenzaprine, Gabapentin, Enalapril, Hydrochlorothiazide, Meloxicam, Lexapro, Norco, Ultram, and Zanaflex. Tr. at 323-24.
Plaintiff presented to David S. Rogers, M.D. (“Dr. Rogers”), for an independent medical evaluation on July 31, 2015. Tr. at 279-86. Prior to examining Plaintiff, Dr. Rogers reviewed imaging reports and treatment notes from Drs. Davis, Clemow, and Pierce. Tr. at 279-81. During the exam, Plaintiff complained of left knee pain and right knee discomfort. Tr. at 281. She indicated she had experienced several falls due to left knee instability. Id. She reported left lower extremity pain from her anterior hip to the top of her toes. Id. Dr. Rogers observed Plaintiff to have a depressed mood and flat affect. Tr. at 283. Plaintiff scored 29 points on Beck's Depression Inventory. Id. Dr. Rogers noted Plaintiff's score was significant for increased sadness, discouragement, tearfulness, self-disgust, self-blame, irritability, worry about physical problems, low self-esteem, sleep, poor initiative, fatigue, and decreased enjoyment of most activities. Id. He stated a mood disorder questionnaire was positive for features of bipolar affective disorder. Id. Dr. Rogers observed Plaintiff to have mild edema in the pre-tibial region and ankles; TTP of the right acromioclavicular joint; moderate TTP of the bilateral sacroiliac joints; palpable crepitus on extension of the left knee; positive anterior drawer pull; and lumbar flexion to 63 degrees and extension to 16 degrees. Id. Plaintiff had reduced grip strength of 15 to 20 pounds on the right, as compared to 40 to 44 pounds on the left. Tr. at 284. She demonstrated a mildly-antalgic gait, favoring the left lower extremity. Id. She had difficulty performing tiptoe walking and reported bilateral sacroiliac joint discomfort on heel walking. Id.
Plaintiff presented to the ER at AnMed Health on November 3, 2015, following an anxiety attack. Tr. at 597. She said she felt hot and as if the room were closing in on her. Tr. at 599. She indicated she had run out of Lexapro three weeks prior due to a problem with her insurance and its cost. Id. Ryan Rider, M.D., assessed anxiety disorder and administered an Ativan injection. Tr. at 599, 602.
Plaintiff presented to Dr. Bryant for routine follow up on May 9, 2016. Tr. at 681. She endorsed anxiety, depression, intermittent joint pain, hypertension, moderate back pain, carpal tunnel syndrome, and urinary incontinence. Id. Dr. Bryant recorded mostly normal findings on physical exam, to include no TTP of the spine, normal ROM of the spine, normal lumbar lordosis, no joint instability in the bilateral upper and lower extremities, normal ROM in the bilateral upper and lower extremities, and normal muscle tone, bulk, and strength. Tr. at 683-84. However, he indicated Plaintiff had anxious mood and nervous affect. Tr. at 684. He refilled Plaintiff's medications and administered a Decadron injection at her right gluteus maximus. Tr. at 686-87.
Plaintiff presented to the ER at AnMed Health on July 26, 2016, after having fallen down her stairs and injured her back. Tr. at 590. She described right-sided lumbar and right hip pain. Id. Clinical physician assistant Katie Stone (“PA Stone”), observed Plaintiff to have mild TTP over the right sacroiliac joint with associated erythema and mild superficial abrasion. Id. X-rays of Plaintiff's lumbar spine showed minimal anterior offset of L4 on L5 likely due to ligamentous laxity and degenerative changes to the facet joints. Tr. at 591. PA Stone ordered Toradol and Norflex injections and discharged Plaintiff with instructions to alternate ice and heat and use Anaprox for pain relief. Tr. at 591, 593.
On August 1, 2016, Dr. Pierce provided a letter addressing Plaintiff's impairments and limitations. Tr. at 326.
Plaintiff presented to Dr. Bryant for routine follow up on February 2, 2017. Tr. at 690. Dr. Bryant refilled Plaintiff's medications. Tr. at 693.
On June 6, 2017, Plaintiff described moderate, intermittent pain in multiple joints. Tr at 675. Dr. Bryant recorded normal findings on exam as to Plaintiff's gait, muscle strength and tone, and ROM of the upper and lower extremities and cervical, thoracic, and lumbar spines. Tr. at 677-78. He described Plaintiff as having anxious mood and nervous affect. Tr. at 678. He refilled Plaintiff's medications and administered a Toradol injection. Tr. at 680.
On March 5, 2018, Plaintiff complained of intermittent aching and throbbing in her hips, knees, and lower back and intermittent pain in her neck and shoulders. Tr. at 665. She reported intermittent reflux, but denied chest pain, shortness of breath, and palpitations. Id. Dr. Bryant noted Plaintiff's cervical, thoracic, and lumbosacral spines were tender and had limited ROM, but he found no edema or reduced ROM in Plaintiff's extremities and normal gait. Tr. at 666-67. He assessed pain in unspecified joints, sciatica, generalized anxiety disorder, essential hypertension, major depressive disorder, and low back pain. Tr. at 667. He refilled Plaintiff's medications. Tr. at 665.
On September 11, 2018, Plaintiff reported intermittent aching and throbbing in her hips, knees, and lower back and intermittent pain in her neck and shoulders. Tr. at 662. She denied chest pain, shortness of breath, palpitations, headache, lightheadedness, cerebrovascular symptoms, and appreciable change in arthritis pain. Id. Dr. Bryant noted no significant edema, normal ROM in all extremities, normal gait with no asymmetry, unremarkable mood and affect, no TTP of the spine, and normal ROM of the cervical, thoracic, and lumbar spine. Tr. at 663-64. He continued Plaintiff's same medications. Tr. at 662.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
i. September 11, 2015
At the first hearing, Plaintiff testified she noticed a shooting pain in her left knee while working at Target. Tr. at 53-54. She indicated she presented to MedNow for treatment the next day and was advised to follow up with an orthopedist. Tr. at 54. She stated she presented to Dr. Pierce for treatment, and he operated on her left knee in April 2013. Tr. at 54-55. She indicated Dr. Pierce also discovered a Baker's cyst in her left knee. Tr. at 55. She testified that neither aspiration of the Baker's cyst nor Cortisone injections were successful in reducing her pain. Tr. at 56. She stated Dr. Pierce prescribed Tramadol for knee pain. Id.
Plaintiff complained of numbness from her left hip to her foot. Tr. at 55. She indicated she had significant arthritis in her left knee. Tr. at 56-57. She endorsed pain in her lower back and bilateral sciatic nerves. Tr. at 57. She testified that the pain in her back was exacerbated because she placed more weight on her right leg than her left while walking and climbing stairs. Tr. at 70-71. She stated the pain in her sciatic nerve sometimes prevented her from sitting. Tr. at 57. She indicated her weight had increased since she last worked because she was no longer able to exercise. Tr. at 69.
Plaintiff testified that she visited Dr. Bryant every six months for primary care treatment. Tr. at 58. She indicated he prescribed Ultram and Gabapentin for pain, Lexapro for depression, and two medications for hypertension. Tr. at 58-59.
Plaintiff testified that she had started taking Lexapro in 2004, but that her dosage had been increased over time. Tr. at 61. She stated she often cried because of her inability to work. Tr. at 62. However, she indicated she did not feel like her depression would prevent her from working if she were physically able to do so. Tr. at 71-72.
Plaintiff estimated she could sit for 15 minutes and stand and walk for 10 to 15 minutes at a time. Id. She indicated a laundry basket full of dry clothes was the heaviest item she could lift. Tr. at 59-60. She claimed she had difficulty climbing stairs and could only climb one at a time. Tr. at 71. She said she would be unable to remain seated all day and would need to stand up and walk around Id. She stated she usually propped up both of her feet and always propped up her left foot while sitting. Id.
Plaintiff testified she lived with her husband and her mother. Tr. at 49. She confirmed that she had a driver's license and was able to drive. Tr. at 50. She stated she was able to shower without assistance, but required her husband's help to put on her stockings and fasten her bra. Id. She indicated she typically watched television and performed light housework during the day. Id. She stated she could sweep the kitchen floor, but would have to rest for 30 minutes before she could mop it. Id. She indicated she prepared meals using a crock pot or the oven. Tr. at 61. She testified that she visited the store to pick up items, but did not do the regular grocery shopping. Id. She indicated her husband cleaned the bathrooms and performed the heavier household chores. Id. She stated she spent most of the day sitting in a recliner or her bed with her foot elevated. Tr. at 62. She described her sleep as being interrupted by pain in her knee and back. Id. She stated she typically napped twice a day for 30 to 45 minutes at a time. Tr. at 63. She indicated she visited her sister's house, went out for meals, and sat on the porch with her mother at times, but was no longer able to take trips and go shopping as she had in the past. Id.
ii. February 13, 2019
Plaintiff testified she was 47 years old. Tr. at 361. She stated she lived in a house and had custody of four children, ages 6, 10, 11, and 13. Tr. at 362. She confirmed she had a driver's license and drove the children two to four miles to their schools each morning. Id. She said the children rode home on buses. Id. She indicated knee and back pain affected her ability to drive and she only drove when necessary and for no more than 30 to 45 minutes. Tr. at 363.
Plaintiff testified she worked for Jeff Webb as a cook and waitress from 2004 to 2006. Tr. at 363. She said she worked as a customer service supervisor at Target from 2011 to 2013. Tr. at 364. She denied having worked since January 2013. Id.
Plaintiff stated she left her job at Target because of left knee pain. Tr. at 365. She denied having undergone left knee replacement surgery. Id. She said she experienced constant pain all around her left knee. Id. She described numbness from her left hip to her toes and bilateral sciatica that was worse on the left. Tr. at 365-66. She indicated she had pain in her lower back. Tr. at 365. She said she experienced swelling in her hands and feet if she stood or sat for too long. Tr. at 366. She stated it had been ongoing for three to four years. Id. She admitted Dr. Bryant had observed the swelling, but had treated it only with fluid pills. Id. She noted Dr. Bryant had prescribed medication for anxiety, which she had experienced since her father's death in 2004. Id. She said her anxiety sometimes caused her to want to be alone and sometimes made her feel sick to her stomach. Tr. at 366-67.
Plaintiff estimated she could sit in a chair for 20 minutes at a time. Tr. at 367. She said she could walk for 20 minutes at a time and could stand for 20 minutes, but would need to shift her weight from one leg to the other. Id. She indicated a gallon of milk was the heaviest item she could lift without experiencing increased pain. Id. She stated she would shower and brush her teeth, sit to rest as she applied her makeup, and then dry her hair. Tr. at 367-68. She said her husband helped her put on her socks and shoes when her back and knee pain were especially bad. Tr. at 368.
Plaintiff testified Norco caused her to feel very sleepy. Id. She said she had difficulty falling and staying asleep. Id. She stated Norco would sometimes cause her to nap, but denied napping daily. Id. She indicated that on a typical day, she sat in a recliner, watched television with her leg elevated, and prepared simple foods in a crock pot or the oven. Tr. at 369. She estimated she would elevate her leg for 30 minutes at a time, three or four times a day and said she slept with it elevated at night. Id. She testified she could sweep the kitchen, but would have to rest after doing it. Id. She said she washed dishes and her children vacuumed and mopped the floors. Id. She indicated her brother-in-law did the laundry, much of the cooking, and shopped for groceries. Tr. at 369-70. She stated she had been awarded custody of the children about four years prior. Tr. at 369.
Plaintiff testified she experienced a constant, dull pain in her left knee that limited her to sitting and standing for 15 to 20 minutes at a time. Tr. at 370. She denied shopping for groceries, but admitted she would go into stores for a few items and for no longer than 20 minutes. Tr. at 370-71. She stated she would lean on the shopping cart as she shopped. Tr. at 371. She said she weighed 350 pounds and admitted her weight affected her abilities to walk and exercise. Id. She indicated she experienced swelling in her hands, feet, and legs after sitting or walking for a long period. Tr. at 372. She admitted the swelling decreased after she elevated her extremities. Tr. at 373.
Plaintiff testified her mental conditions included depression, anxiety, and panic attacks. Id. She indicated she treated these conditions with Celexa and Lorazepam. Id. She said she usually experienced two panic attacks per month that might last for an hour or two at a time. Id. She stated she isolated herself from others for as little as a couple of hours or as much as a day, once or twice a month, when she felt she needed to be alone and cry. Tr. at 374. She confirmed that Dr. Pierce was the only provider who was treating her mental symptoms. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) William Wayne Stewart, Ph.D., reviewed the record and testified at the second hearing. Tr. at 374-79. The VE categorized Plaintiff's PRW as a supervisor, cashier, Dictionary of Occupational Titles (“DOT”) No. 211.137-010, as requiring light exertion and having a specific vocational preparation (“SVP”) of 7, per the DOT and 4 or 5, as described by Plaintiff. Tr. at 375. The VE confirmed that an individual limited to sedentary work would be unable to perform Plaintiff's PRW. Tr. at 376. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform sedentary work that required she lift 10 pounds occasionally and less than 10 pounds frequently, sit for up to six hours in an eight-hour workday, and stand or walk for up to two hours in an eight-hour workday; never use the left leg for pushing, pulling, or operating foot pedals or controls; never use ladders; occasionally use stairs, crouch, kneel, and crawl; frequently stoop; never be exposed to unprotected heights or dangerous, moving machinery; and concentrate on and perform work activities for at least two hours at a time before needing a normal break of 15 minutes or a once daily 30-minute meal break. Id. The ALJ asked whether there were any jobs in the national economy that the hypothetical person could perform. Id. The VE identified sedentary jobs with an SVP of 2 as a charge account clerk, DOT No. 205.367-014, a surveillance system monitor, DOT No. 379.367-010, and a weight tester, DOT No. 539.485-010, with 110, 000, 90, 000, and 17, 500 positions in the national economy, respectively. Tr. at 376-77.
The ALJ asked the VE to consider that the individual would need to elevate the legs to waist level during periods in addition to normal breaks. Tr. at 377. She asked if the jobs the VE identified or any other jobs would be available. Id. The VE testified there would be no jobs. Id.
The ALJ asked the VE to consider that chronic pain would prevent the individual from maintaining attention and focus or staying on task for as long as two hours at a time or would require she take breaks in addition to those typically permitted during a workday. Tr. at 377-78. She asked if the jobs the VE previously identified or other jobs would be available. Tr. at 378. The VE stated they would not. Id.
The ALJ asked the VE to consider that the individual would be unable to consistently work for eight hours a day and five days a week or would miss two or more days of work per month. Id. She asked if the jobs the VE identified or any other jobs would be available. Id. The VE testified there would be no jobs. Id.
The ALJ asked the VE if his testimony had been consistent with the DOT. Id. The VE stated his testimony was generally consistent with the DOT, except that the DOT did not address the need to elevate the legs; effects of pain on attention, concentration, and mental focus; additional breaks; the ability to work eight hours a day and five days a week on a consistent basis; or missing work and absenteeism. Id.
Plaintiff's attorney asked the VE to consider that the individual could only sit for 15 to 20 minutes at a time and stand for 15 to 20 minutes at a time. Tr. at 379. He asked the VE if there would be any jobs available for the individual. Id. The VE stated there would be no jobs. Id.
Plaintiff's attorney asked the VE to consider that the individual would experience bouts of chronic pain that would prevent her from attending basic one- and two-step tasks on several days a month. Id. He asked if there would be any competitive employment for such a person. Id. The VE testified there would be no jobs. Id.
2. The ALJ's Findings
In her decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2014.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of January 13, 2013 through her date last insured of December 31, 2014 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: left knee degenerative joint disease and chondromalacia and plica syndrome status post-arthroplasty, lumbar degenerative disc and joint disease, and morbid obesity (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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 through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a). She could not use ladders, but could frequently stoop and occasionally use stairs, kneel, crouch, and crawl. She could not be exposed to unprotected heights or dangerous moving machinery. Claimant could concentrate on to perform these work activities for at least two hours at a time before needing a normal break of 15 minutes or one 30-minute meal break per day.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on November 12, 1971 and was 43 years old, which is defined as a younger individual age 18-44, on the date last insured (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).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from January 13, 2013, through December 31, 2014, the date last insured (20 CFR 404.1520(g)).Tr. at 339-47.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to properly evaluate the opinion evidence; and
2) the ALJ failed to include a limitation to simple, routine tasks in the RFC assessment without adequately explaining her rejection of the limitation.
The Commissioner counters that substantial evidence supports the ALJ's findings and that 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:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive 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, 460 (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 Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does 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; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his 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 past relevant work to make a finding at the fourth step, he 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. Subpart P, § 404.1520(a), (b); 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 that claimant can perform alternative work and that such work exists in the 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 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 Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sulivan, 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, 1157-58 (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. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; 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 his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). 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
Plaintiff argues the ALJ erred in weighing the medical opinions, which indicated limitations greater than those he assessed. [ECF No. 14 at 20]. The Commissioner maintains that substantial evidence supports the ALJ's evaluation of the medical opinions of record. [ECF No. 15 at 9].
Plaintiff's application for benefits was filed prior to March 27, 2017. Therefore, the rules and regulations in 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, and 06-3p address the factors the ALJ was required to consider in evaluating the medical opinion evidence. See 20 C.F.R. § 404.1520c (stating “[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply”); 82 Fed. Reg. 15, 263 (noting the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for “claims filed on or after March 27, 2017”). These rules and regulations include a “treating physician rule, ” requiring the adjudicator to accord controlling weight to a treating physician's medical opinion if it is well supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527(c)(2).
“[T]he 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 174 (4th Cir. 2011) (citing Hunter v. Su livan, 993 F.2d 31, 35 (4th Cir. 1992)). However, if the ALJ concludes that a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence of record, she cannot merely reject the opinion. SSR 96-2p, 1996 WL 374188, at *4. 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 the court “the weight [she] gave to the . . . opinion and the reason for that weight.” Id. at *5. If the ALJ declines to give controlling weight to a treating physician's opinion, she must weigh it, along with all other medical opinions of record, based on the following factors: “(1) the ‘[l]ength of the treatment relationship and the frequency of examination'; (2) the ‘[n]ature and extent of the treatment relationship'; (3) ‘[s]upportability,' i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the treating physician is a specialist opining as to ‘issues related to his or her area of specialty': and any other factors raised by the parties ‘which tend to support or contradict the medical opinion.'” Dowling v. Commissioner of Social Security Administration, 986 F.3d 377, 384-85 (4th Cir. 2021) (citing 20 C.F.R. § 404.1527(c)(2)(i)-(6)).
In light of the foregoing authority, the undersigned addresses Plaintiff's allegations as to Drs. Pierce's and Rogers's opinions.
a. Dr. Pierce's Opinions
On June 13, 2013, Dr. Pierce stated it would be difficult for Plaintiff to return to any work that required prolonged standing. Tr. at 262. On August 13, 2013, Dr. Pierce indicated it would be difficult for Plaintiff “to return to any work as she has problems with both standing as well as sitting for anything more than 15 or 20 minutes.” Tr. at 275.
In Dr. Pierce's August 1, 2016 letter, he explained that during her last visit with him, Plaintiff “had some degree of arthritis in her medial compartment” and significant arthritis in her patellofemoral compartment that would “make it difficult for her to stand for long periods” and “cause significant pain when the knee [was] bent, including when she [was] seated.” Tr. at 326. He estimated Plaintiff would need to alternate between sitting and standing approximately every 15 to 20 minutes. Id. He stated she would “have periodic bouts of pain during which she would not be able to attend even the most basic tasks, several days a month.” Id. He stated Plaintiff's problems could be resolved with knee replacement, but that he did not “want to do that for her until she [was] 50” because of the limited life span of the prosthetic. Id.
Plaintiff argues Dr. Pierce specifically related his opinions to his findings during the relevant period. ECF No. 14 at 23; ECF No. 16 at 3. She contends Dr. Pierce's opinions were supported by the impairments he treated and the explanation he provided. [ECF No. 14 at 23]. She claims that in concluding Dr. Pierce's opinion was inconsistent with her imaging, surgical history, and exams, the ALJ relied on her own interpretation of the medical evidence, as opposed to that of the treating orthopedic surgeon. Id. She claims the ALJ did not consider all the evidence as to her ADLs in finding them inconsistent with Dr. Pierce's opinion. Id. at 24. She maintains there is no evidence to support the ALJ's conclusion that Dr. Pierce's opinion was based on her subjective complaints because her subjective complaints were supported by objective clinical findings and Dr. Pierce explained how her objective problems would cause the limitations. Id. at 25; ECF No. 16 at 4.
The Commissioner argues the ALJ adequately explained his allocation of partial weight to Dr. Pierce's June 2013 opinion, noting it was a temporary restriction and that it was expected that Plaintiff's knee would continue to improve. [ECF No. 15 at 10]. He maintains the ALJ properly explained that Dr. Pierce's August 2013 and 2016 opinions merited little weight, as he addressed an issue reserved to the Commissioner. Id. at 11. He further contends the ALJ properly noted that when Dr. Pierce rendered his 2016 opinion, he had not seen Plaintiff since 2013 and failed to cite positive exam findings or medical imaging to support this opinion. Id. He claims the record supports the ALJ's conclusion that the restrictions Dr. Pierce provided were based on Plaintiff's subjective complaints. Id. at 11-12. He maintains the ALJ did not substitute her opinion for that of Dr. Pierce, but instead, permissibly evaluated the evidence and assessed Plaintiff's RFC. Id. at 12.
The ALJ addressed Dr. Pierce's opinions as follows:
The opinions from orthopedic surgeon Mark Pierce, M.D. receive little to partial weight. The June 2013 opinion form stating the claimant would have difficulty performing work duties with prolonged standing is given partial weight to the extent it supports a restriction to sedentary work (3F/1). This was
consistent with the claimant's surgical history, medical imaging, and positive lumbar and knee findings on exam and supported a restriction to less than sedentary work. However, Dr. Pierce's February 2013 statement keeping the claimant off work is afforded little weight, as this was temporary (3F/6). His August 2013 and 2016 opinions finding problems returning to work, sitting or standing more than 15-20 minutes at a time, and performing even basic tasks due to pain several times a month also merit little weight (5F; 9F). A finding of disability or inability to work is a finding reserved to the Commissioner, while Dr. Pierce had not seen the claimant since 2013 and did not cite positive findings on exam or medical imaging in support for his 2016 statement. Furthermore, these were not consistent with the claimant's imaging and surgery showing grade IV chondromalacia but minimal osteoarthritis, reports of slowly improved knee and hip pain in 2014, other exams showing normal muscle strength and gait, largely normal mental status examinations with no acute distress or mental status deficits, and ability to drive up to 30-45 minutes, care for four children, cook simple meals, and do light chores like sweeping and dusting even after the date last insured. Rather, these restrictions appeared to be largely based on the claimant's subjective complaints.Tr. at 345.
The ALJ provided valid reasons for declining to accord controlling weight to Dr. Pierce's opinions. The ALJ correctly noted that Dr. Pierce's opinion that Plaintiff would have difficulty returning to work was a statement on an issue reserved to the Commissioner. See 20 C.F.R. § 404.1527(d) (“Opinions on some issues, such as the examples that follow, are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case, i.e., that would direct the determination or decision of disability. (1) Opinions that you are disabled . . . . A statement by a medical source that you are ‘disabled' or ‘unable to work' does not mean that we will determine that you are disabled.”). The record arguably supports the ALJ's conclusion that Dr. Pierce based his opinion that Plaintiff was limited to 15 to 20 minutes of standing and sitting on her self-reported limitation. The opinion first appears in Dr. Pierce's August 13, 2013 treatment note. See Tr. at 275. The same note contains the following: “She states that her knee is slightly improved, but still could not stand and do any significant work for more than 15 to 20 minutes and also cannot sit for more than 15 to 20 minutes continuous.” Id. The ALJ also correctly noted Dr. Pierce did not cite exam or imaging findings to support his 2016 opinion, as he admitted he had “not seen [Plaintiff] in some time.” See Tr. at 326. Finally, the ALJ cited objective evidence and Plaintiff's ADLs that were arguably inconsistent with the limitations Dr. Pierce advanced. See Tr. at 345.
Although the ALJ provided multiple valid reasons for declining to accord controlling weight to Dr. Pierce's opinions, she failed to thoroughly evaluate the opinions based on all the relevant factors in 20 C.F.R. § 404.1527(c). See Dowling, 986 F.3d at 385 (“While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Id. at 385 (emphasis in original) (citing Arakas v. Comm'r of SSA, 983 F.3d 83, 107 n.16 (4th Cir. 2020) (“20 C.F.R. § 404.1527(c) requires ALJs to consider al
of the enumerated factors in deciding what weight to give a medical opinion.” (emphasis in original)); Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000) (agreeing with the “[s]everal federal courts [that] have concluded that an ALJ is required to consider each of the § 404.1527[c] factors” when weighing the medical opinion of a treating physician).
Notably, the ALJ's decision does not reflect thorough consideration of the treatment relationship between Plaintiff and Dr. Pierce. Pursuant to 20 C.F.R. § 404.1527(c)(2)(i), “[g]enerally, 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. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the medical source's medical opinion more weight than we would give it if it were from a nontreating source.” The record reflects Dr. Pierce examined Plaintiff on nine occasions between January and November 2013. Tr. at 262-69, 275, 586. The ALJ acknowledged that Plaintiff “underwent an April 2013 left knee arthroscopy for grade 4 chondromalacia and patellar plica syndrome, ” Tr. at 343, but did not acknowledge that Dr. Pierce performed the surgery.
Although the ALJ generally referenced objective findings, she did not explain which of those findings occurred in the context of Dr. Pierce's exams or specifically note that Dr. Pierce had examined Plaintiff on multiple occasions. See Tr. at 343. Her only reference to the examining relationship between Plaintiff and Dr. Pierce was her indication that “Dr. Pierce had not seen the claimant since 2013” in discussing the 2016 opinion. See Tr. at 345. Given the Fourth Circuit's recent decision in Dowling, the undersigned is constrained to recommend the court remand the case for further consideration of Dr. Pierce's opinion in accordance with 20 C.F.R. § 404.1527(c).
b. Dr. Rogers's Opinion
Following an independent medical exam on July 31, 2015, Dr. Rogers stated it was his “opinion beyond a reasonable degree of medical certainty that left knee derangement ha[d] resulted in a gait derangement which [was] directly attributable to bilateral sacroiliac joint dysfunction.” Tr. at 284. He further stated it was his opinion “the significant limitations in activities of daily living as well as reduced recreational and occupational functionality ha[d] resulted in emotional/behavioral dysfunction.” Id. He assessed a 20 percent lower extremity impairment and an eight percent whole person impairment rating related to left knee derangement and a 15 percent whole person impairment rating due to gait derangement secondary to left knee dysfunction. Id. He assessed a 14 percent whole person impairment rating due to behavioral/emotional dysfunction. Tr. at 285. He stated Plaintiff would have a 27 percent combined whole-person impairment rating. Id. He further indicated Plaintiff would be restricted as stated in Dr. Pierce's August 13, 2013 treatment note to no standing or walking for greater than 15 to 20 minutes at a time. Id. He indicated it was his medical opinion that Plaintiff would be unable to return to her previous level of employment and would require continued medical management. Id.
Plaintiff argues the ALJ unreasonably rejected Dr. Rogers's opinion. [ECF No. 14 at 28]. She maintains the ALJ failed to consider the consistencies between Drs. Rogers's and Pierce's opinions. Id. at 28-29. She contends the ALJ erred in reducing the weight of Dr. Rogers's opinion because he had not examined her prior to her DLI for disability benefits, as the record failed to show any intervening accident or injury between her DLI and his exam. Id. at 29. She claims the ALJ's citation of Dr. Rogers's positive and negative findings without additional explanation was insufficient to support a rejection of his opinion. Id. She maintains the ALJ should not have given the opinion less weight based on her conservative treatment, as it was the only type of treatment available to her, given her age. Id. at 29-30. She notes the ALJ did not explain how her ADLs or the objective findings were contrary to Dr. Rogers's opinion. Id. at 30. She contends the ALJ did not specifically consider her abilities to stand and walk in weighing Dr. Rogers's opinion. Id.
The Commissioner argues the ALJ reasonably explained her allocation of little weight to Dr. Rogers's opinion. [ECF No. 15 at 12-13]. He maintains the ALJ noted Dr. Rogers observed some abnormalities, but mostly normal findings and his opinion was not supported by the record as a whole. Id. at 13.
The ALJ addressed Dr. Rogers's opinion as follows:
The July 2015 opinion of independent medical evaluator David Rogers, M.D. finding the claimant unable to return to her past work or stand/walk more than 15-20 minutes at a time received little weight (7F). A finding of disability or inability to work is a finding reserved to the Commissioner, while his evaluation was well after the date last insured. Moreover, although he observed difficulty with tiptoe walking and discomfort with heel walking, her gait was only “mildly” antalgic with mostly 5/5 strength in the lower extremities. His opinion was also not supported by the record as a whole, including her conservative care after her surgery, intact activities of daily living, and other exams showing normal range of motion, strength, and gait. The claimant's limitation in standing and walking as of the date last insured were adequately addressed in the residual functional capacity.Tr. at 345.
The ALJ provided some valid reasons for her allocation of little weight to Dr. Rogers's opinion. She correctly noted Dr. Rogers's opinion that Plaintiff was unable to return to her past work was an opinion on an issue reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)(1). She also cited normal findings on other exams that would tend to contradict Dr. Rogers's opinion. See Tr. at 345. However, her rationale does not reflect thorough consideration of all the relevant factors in 20 C.F.R. § 404.1527(c).
“The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). The ALJ's explanation for her allocation of little weight to Dr. Pierce's opinion makes it appear as if his only positive objective findings were of “difficulty with tiptoe walking, ” “discomfort with heel walking, ” and “mildly” antalgic gait. See Tr. at 345. She did not address Dr. Rogers's observations of depressed mood and flat affect, mild edema in the pre-tibial region and ankles, TTP of the right acromioclavicular joint, moderate TTP of the bilateral sacroiliac joints, palpable crepitus on extension of the left knee, positive anterior drawer pull, lumbar flexion to 63 degrees and extension to 16 degrees, and reduced grip strength on the right, as compared to the left. Tr. at 281, 284. This evidence arguably lends greater support to Dr. Rogers's opinion. “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 v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
Although the ALJ cited evidence to support her conclusion that Dr. Rogers's opinion was inconsistent with the record, she did not address the consistency between his opinion and that of Dr. Pierce. Both indicated Plaintiff was limited to sitting and standing for 15 to 20 minutes at a time. Compare Tr. at 262, 275, and 326, with Tr. at 284-85. While the ALJ was not required to give greater weight to Drs. Pierce's and Rogers's opinions because they indicated similar limitations, she should have acknowledged the consistency in the two opinions and provided a thorough explanation for her rejection of the particular limitation.
Given the ALJ's failure to address all the factors in 20 C.F.R. § 404.1527(c) in evaluating Dr. Rogers's opinion, the undersigned recommends the opinion be reconsidered on remand.
2. Simple, Routine Tasks
Plaintiff argues the ALJ declined to include restrictions in the RFC assessment without providing an adequate explanation for her rejection of those limitations. [ECF No. 14 at 31]. She maintains the ALJ failed to include a restriction for simple, routine tasks, despite having included such a restriction in her prior decision, and did not explain her reason for omitting the restriction. Tr. at 31-32. She contends that she would have been unable to perform the jobs the VE identified if the ALJ had limited her to simple, routine tasks. Id. at 32-33.
The Commissioner argues the ALJ's RFC finding does not need to include all limitations alleged by a claimant. [ECF No. 15 at 14]. He maintains the ALJ carefully explained her RFC finding and reasons for assessing the limitations she included in the RFC assessment. Id. He contends there was no conflict between the RFC assessment and the VE's testimony as to jobs because the ALJ did not find that a limitation to simple, routine tasks was supported by the record. Id. at 15.
A claimant's RFC represents “the most [she] can still do despite [her] limitations. 20 C.F.R. § 404.1545(a). In assessing the claimant's RFC, the ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [the claimant's] ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)). The Fourth Circuit has declined to adopt a per se rule requiring remand where an ALJ fails to perform an explicit function-by-function analysis, as “remand would prove futile in cases where the ALJ does not discuss functions that are ‘irrelevant or uncontested.'” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2016). However, “‘[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
In Thomas, 915 F.3d at 311, the court noted “[a] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The logical explanation component requires the ALJ consider all the relevant evidence and account for all the claimant's medically-determinable impairments. See 20 C.F.R. § 404.1545(a). “A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, ” including “a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Thus, the ALJ must include a narrative discussion that cites “specific medical facts (e.g., laboratory findings), and non-medical evidence (e.g., daily activities, observations)” and explains how all the relevant evidence supports each conclusion. SSR 96-8p, 1996 WL 374184, at *7.
Plaintiff essentially argues the ALJ was not permitted to deviate from the mental restriction in her prior RFC assessment without explicitly providing a reason for her deviation. Following the Fourth Circuit's decision in Albright v. Commissioner of Social Security Administration, 174 F.3d 373 (4th Cir. 1999), the Social Security Administration (“SSA”) issued Acquiescence Ruling (“AR”) 00-1(4), interpreting Albright “to hold that where a final decision of SSA after a hearing on a prior disability claim contains a finding required at a step in the sequential evaluation process for determining disability, SSA must consider such finding as evidence and give it appropriate weight in light of all relevant facts and circumstances when adjudicating a subsequent claim involving an unadjudicated period.” 2000 WL 43774, at *4. However, as this court explained in Smith v. Colvin, C/A No. 1:14-3387-DCN, 2015 WL 4885172, at *20-22 (D.S.C. Aug. 14, 2015), ALJs are generally not required to explicitly discuss and weigh prior non-final administrative decisions. The ALJ's prior decision was not the final decision in the case because this court reversed it. Plaintiff has cited and the undersigned finds no authority indicating an ALJ is required to explain deviations from the original RFC assessment where the case was remanded. Therefore, the undersigned has reviewed the record to determine whether the ALJ provided a sufficient explanation for declining to impose additional mental restrictions, given evidence of Plaintiff's medically-determinable mental impairments.
The ALJ recited Plaintiff's allegations, discussed the medical evidence and her ADLs, and provided specific reasons for rejecting additional limitations in the RFC assessment. See Tr. at 342-44. She wrote the following:
Through the date last insured, I accounted for the claimant's pain, periodic knee swelling, and decreased mobility from left knee degenerative joint disease and chondromalacia and plica syndrome status post-arthroplasty, lumbar degenerative disc and joint disease, and morbid obesity by limiting the claimant to sedentary work as described above. Due to left knee pain and occasional swelling, she could not use the left leg for pushing, pulling, or operating foot controls. Because of pain and decreased mobility of the back and knee, she could not use ladders, but could frequently stoop and occasionally use stairs, kneel, crouch, and crawl. She could not be exposed to unprotected heights or dangerous moving machinery. While her pain is significant, she remained able to concentrate on, focus and perform these work activities for at least two hours at a time as described previously.Tr. at 344.
Earlier, in evaluating Plaintiff's mental impairments, the ALJ found she had mild limitations in understanding, remembering, and applying information, and concentrating, persisting, and maintaining pace. Tr. at 340. She acknowledged Plaintiff's longstanding history of anxiety and depression, but indicated she had previously worked, despite these impairments. Id. She recognized Plaintiff's allegations of crying spells, depression, and problems finishing tasks and paying attention, but noted she “could follow instructions well, care for four foster children ages 6-13 since 2015, do light chores, use Facebook daily, watch TV daily, manage finances, and drive up to 30-45 minutes.” Id. She indicated exams prior and subsequent to Plaintiff's DLI had shown anxiety and depression, but her providers had observed her to be “awake, alert, and oriented with appropriate grooming, appropriate fund of knowledge, good insight and judgment, intact memory, and no obvious mental deficits.” Id.
The ALJ explained her conclusion that Plaintiff had mild limitation in interacting with others, noting “[s]he testified to anxiety, 1-2 panic attacks per month, and self-isolation 1-2 times per month, but denied problems getting along with others with the ability to go out alone, drive locally, take her foster children to school, shop for small groceries when needed, sit and talk with others daily, attend church weekly, visit state parks with her husband, visit family members with her mother, and run errands.” Id. She again noted that exams prior and subsequent to Plaintiff's DLI had referenced anxiety and depression, but reflected that her providers had observed her to have a “pleasant and cooperative demeanor, non-pressured speech, and appropriate responses to questions.” Id.
The ALJ concluded Plaintiff had no limitation in adapting or managing oneself, as she “complained of problems handling stress and changes in routine, ” but had “helped to raise four foster children since 2015.” Id. She further cited Plaintiff's November 2015 report to providers in the ER that she typically did not experience panic attacks when she was taking her medication as prescribed. Tr. at 341.
Because the ALJ assessed mild limitation in three of the four areas of mental functioning and no limitation in one area, the undersigned has considered whether substantial evidence supports these conclusions. No. limitation means the individual is “able to function in th[e] area independently, appropriately, effectively, and on a sustained basis. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(F)(2)(a). Mild limitation means the individual is “slightly limited” in her ability to function in the area “independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(F)(2)(b). The examples the ALJ cited support her conclusion that Plaintiff had no limitation in adapting or managing oneself and only mild limitation in the three other areas. The undersigned's review of the record does not suggest the ALJ failed to consider any material evidence as to Plaintiff's mental functioning in reaching her conclusions.
In discussing Plaintiff's RFC, the ALJ noted her ADLs included helping to care for her four foster children, cooking simple oven or crock pot meals, driving for up to 45 minutes, shopping, and performing household chores and personal care. Tr. at 342. She indicated Plaintiff “complained of side effects of sleepiness sometimes, but otherwise denied medication side effects, while exams showed her to be awake, alert, oriented with no obvious mental deficits (3E; 8E; 11E; hearing record).” Tr. at 343. She stated Plaintiff's “lack of distress or discomfort on exam and varied activities reflected sufficiently intact concentration for work tasks despite her pain.” Tr. at 344. She found that Plaintiff's mental limitations would not prevent her from concentrating to perform work activities for at least two hours at a time, prior to needing a 15-minute rest break or 30-minute meal break. Tr. at 342.
To the extent Plaintiff argues the evidence supports a maximum RFC for simple, routine tasks, the ALJ provided a reasoned explanation to support a finding that she was not so limited. See Tr. at 340-41. The ALJ considered Plaintiff's allegations and pointed to evidence in the record that supported a conclusion that she was only slightly limited such that her mental impairments were non-severe. Therefore, the undersigned recommends the court find substantial evidence supports the ALJ's RFC assessment to the extent that she provided sufficient reasons for declining to limit Plaintiff to simple, routine tasks.
III. Conclusion and Recommendation
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.
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).