Opinion
Civil Action 5:23-2196-DCN-KDW
05-23-2024
Cathy M. Lewis, Plaintiff, v. Martin O'Malley,[1] Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Kaymani D. West, 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 Civil 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”) pursuant to the Social Security Act (“the Act”). The issue before the court is whether the Commissioner's decision is supported by substantial evidence. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On September 16, 2015, Plaintiff filed an application for DIB alleging a disability onset date of March 6, 2015. Tr. 194-95. Plaintiff later amended her alleged onset date to January 1, 2017, as the ALJ found she had engaged in substantial gainful activity (“SGA”) in 2015 and 2016. Tr. 23; see Pl. Mem., ECF No. 18 at 2, n.1, C/A No. 5:19-cv-2298-DCN (amending alleged onset date to January 1, 2017). Plaintiff's claim was denied initially, Tr. 77, and upon reconsideration, Tr. 98, and Plaintiff requested a hearing, Tr. 118-19. On April 24, 2018, a hearing was held before Administrative Law Judge (“ALJ”) Tammy Georgian and testimony was taken from Plaintiff, who was represented by counsel; and a vocational expert (“VE”). Tr. 35-58. On August 31, 2018, the ALJ issued an unfavorable decision finding Plaintiff was not disabled. Tr. 21-28. Plaintiff requested review of the decision from the Appeals Council. Tr. 118-19. The Appeals Council denied review on June 12, 2019, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Tr. 1-6. On August 15, 2019, Plaintiff filed her Complaint in this court seeking judicial review of the Commissioner's administrative determination. See ECF No. 1, C/A No. 5:19-cv-2298-DCN. Plaintiff obtained an Order, filed March 18, 2021, reversing the Commissioner's decision and remanding the case for further administrative proceedings. Tr. 593-600, Order in C/A No. 5:19-cv-2298-DCN. The Order reversed the decision based on the ALJ's failure to consider evidence pre-dating Plaintiff's disability onset date. Id. On February 18, 2022, the Appeals Council issued an Order remanding the case to the ALJ “for further proceedings consistent with the order of the court.” Tr. 605.
Plaintiff waived her right to a second administrative hearing, Tr. 727, and on February 14, 2023, ALJ Georgian issued an unfavorable decision based on the evidence in the record, finding that Plaintiff was not disabled from her onset date to her date last insured. Tr. 520-37. The Notice of Decision provided that Plaintiff could file either written exceptions with the Appeals Council within 30 days, Tr. 520, or file a new civil action in the Federal district court within 60 days, Tr. 521. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on May 23, 2023. ECF No. 1.
B. Plaintiff's Background
Born in December 1954, Plaintiff was 60 years old as of her original alleged onset date and 62 years old as of her amended alleged onset date of January 1, 2017. See Tr. 79. In her October 5, 2015 Disability Report-Adult Plaintiff noted that she had obtained her GED in 2000 and had not completed any specialized job training, trade, or vocational school. Tr. 228. Plaintiff noted she was still working as a fresh foods clerk at a grocery store as of the date of that October 5, 2015 Report. Tr. 229. Plaintiff indicated that her conditions had caused changes in her work activity as of March 6, 2015. Tr. 228. The Report does not indicate what those changes were. Plaintiff also noted prior work as a cleaner and drywall worker. Tr. 229. At that time of the October 2015 Report Plaintiff listed the following conditions that limited her ability to work: neck pain, back pain, left arm pain, digestive disorders, bilateral hearing loss, foot and ankle pain, allergies, hypertension, anxiety, and depression. Tr. 227.
C. Administrative Proceedings
Plaintiff's first administrative hearing was held on April 24, 2018. Tr. 35-58, 608-31. Following remand, a second administrative hearing was scheduled for June 23, 2022. Tr. 666-80. On June 23, 2022, Plaintiff, through counsel, waived her right to have a hearing. Tr. 692. However, on October 28, 2022, Plaintiff submitted a form agreeing to a telephone hearing pursuant to Covid-19 Protocols, Tr. 693-94, and the hearing was set for January 26, 2023, Tr. 697. On January 22, 2023, Plaintiff again “elected to decline the hearing offer and has specifically waived her right to have another hearing held in her case.” Tr. 727. Plaintiff requested that the ALJ “render a decision on her claim based upon the existing record in her case.” Id.
For convenience's sake, the undersigned's summary of Plaintiff's April 2018 administrative hearing in Charleston, SC as set forth in the December 10, 2020 Report and Recommendation is included below. See Tr. 573-76, Report and Recommendation in case number 5:19-cv-2298-DCN.
1. Plaintiff's testimony
In response to questions from the ALJ Plaintiff testified that she lived in an apartment. Tr. 40. Plaintiff indicated that she had her GED and had attended technical school until she had to leave that program after having an automobile accident. Tr. 41.
Plaintiff testified she had worked at Harris Teeter as a deli clerk but had to stop working “[b]ecause of [her] feet pain.” Tr. 42-43. Plaintiff said she was on her feet all day at that job, and she was in terrible pain and could not continue working. Tr. 43. Plaintiff also had several jobs in which she served as a cleaner. Tr. 42-44. Plaintiff testified that the reason she was unable to work any job was because of her feet. Tr. 45. She indicated she gets tendinitis in her right foot/ankle. Tr. 45. Plaintiff indicated a doctor had told her she had irreversible nerve damage in the bottom of her feet. Tr. 45. Plaintiff initially indicated the last time she had seen a doctor for her feet was around November of 2017. She was unable to recall his name. Tr. 46. That doctor advised her she needed to have her foot operated on. Tr. 46. Upon questions from the ALJ, Plaintiff's counsel indicated Plaintiff had been mistaken about the timing of her visiting a specialist regarding foot issues. Plaintiff had last seen Dr. Blake Ohlson of Orthopedic Specialists of Charleston for her foot issues on July 6, 2016. Tr. 46 (referencing Exhibit 7F).
When asked by the ALJ whether she had any issues other than her feet that made her feel unable to work Plaintiff responded in the negative. Tr. 46 (“Just my feet.”). Plaintiff noted how her feet hurt when she had to wear the brand of shoe that Harris Teeter required or the “plastic shoes” she had to wear over her personal shoes when working. Tr. 47. Plaintiff noted that, at the time of the hearing, she had an orthotic to use in her shoes and that she wore a certain type of sandal or flip flop at times. Tr. 47.
Plaintiff indicated she took pain medication for her back and for headaches. Tr. 47-48. Plaintiff said she took two medications for her “real bad stomach problems,” and she took Xanax at night to relax her. Tr. 49. She also took Adderall and an antidepressant. Tr. 49. Plaintiff said she did not smoke and drank alcohol moderately. Tr. 49.
When asked about her activities, Plaintiff indicated she had joined a Senior Center, and she enjoyed going there to be around people and to go to the gym, where she would walk on the treadmill and use weights for her arms and legs. Tr. 49-50. Plaintiff noted she also walked a little where she lived and that she tried to stay active. Tr. 49-51. Plaintiff said she took care of her own household chores and prepared her own food. Tr. 51.
In response to questions from her attorney, Plaintiff noted that Dr. Ohlson was the doctor she had seen for her foot pain. Tr. 51. Dr. Ohlson diagnosed irreversible nerve damage on the bottoms of Plaintiff's feet. Tr. 51-52. Dr. Ohlson prescribed a brace that helped. Tr. 52. Plaintiff started seeing Dr. Ohlson in May 2016, at which time he did x-rays and said that Plaintiff needed foot surgery. Tr. 52. Plaintiff indicated that, if she had financial means, she “absolutely” would have gotten that surgery, and she still hoped to do so in the future. Tr. 52.
Regarding Plaintiff's work at Harris Teeter, Plaintiff indicated she worked part-time, approximately four or five hours per day. Tr. 52-53. Plaintiff indicated she “couldn't hardly go over the four-hour period standing on [her] feet.” Tr. 53.
Plaintiff noted that Dr. Cain gave her a handicapped placard that said it was temporary but that she had had it for several years and still had it at the time of the hearing. Tr. 53. Plaintiff indicated she could typically be on her feet standing and walking “[a]nywhere from maybe 45 minutes.” Tr. 53. After that, Plaintiff says her feet start hurting and swelling. Tr. 54. Plaintiff said she would not be able to work eight hours per day, five days a week. Tr. 54. She said she had the opportunity to have a full-time job, but she had to turn it down. Tr. 54. Plaintiff indicated that she performed activities at the gym at her own pace. Tr. 54. She said she did not work out at the gym for “several hours at a time.” Tr. 54.
2. VE testimony
VE Johnson classified Plaintiff's past relevant work (“PRW”) as a housekeeping cleaner-DOT code 323.687-014; SVP level of 2; unskilled. Tr. 55-56. The VE noted that the job was classified as light but that, as Plaintiff performed it in at least one job, it was medium. Tr. 56. Plaintiff's job as deli clerk had DOT code of 290.477-018, SVP level of 3, semiskilled, and light exertion. Tr. 56.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and work experience who can do light work; frequently sit, stand, and walk; frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; and can frequently stoop, kneel, crouch, and crawl. Tr. 56. The VE opinioned that such an individual could perform Plaintiff's PRW with the exception of the one job that was medium as performed. Tr. 56. The VE clarified the hypothetical individual would be able to perform Plaintiff's PRW as generally performed. Tr. 56.
Plaintiff's counsel asked the VE whether the same hypothetical worker's need to take an unscheduled break throughout the workday “several times for maybe 15 minutes' duration” would interfere with performing the jobs identified as well as other jobs in the economy. Tr. 57. The VE responded in the affirmative, stating, “There would be no jobs.” Tr. 57. Counsel also asked whether a full-time worker who was absent four or more days per month would be able to perform PRW or any work. The VE indicated such a worker would not be able to perform any work. Tr. 57.
The VE confirmed that her testimony was consistent with the DOT except for the information regarding absences or unscheduled breaks, which she knew from experience and training. Tr. 57.
II. Discussion
A. The ALJ's Findings
In her February 14, 2023 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 through December 31, 2019.
2. The claimant did not engage in substantial gainful activity during the period from her amended alleged onset date of January 1, 2017, through her date last insured of December 31, 2019 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairment: osteoarthritis. (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 light work as defined in 20 CFR 404.1567(b) except that the claimant can frequently sit, stand, and walk, can frequently climb ramps and stairs, and occasionally climb ladders, ropes, and scaffolds, and can frequently stoop, kneel, crouch, and crawl.
6. Through the date last insured, the claimant was capable of performing past relevant work as a cleaner, housekeeping, DOT #323.687-014, SVP 2, light and deli clerk, DOT #290.477-018, SVP 3, light.
This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant was not under a disability, as defined in the Social Security Act, at any time from March 6, 2015, the alleged onset date, through December 31, 2019, the date last insured (20 CFR 404.1520(f)).Tr. 525-26, 529, 537.
B. 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,” defined 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, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant 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 the claimant from performing specific jobs that exist in significant numbers in the national economy. 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, he 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 his impairments match several specific criteria or be “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).
A claimant is not disabled within the meaning of the Act if the claimant 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 the 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 regional 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 the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (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 id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 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, 1157-58 (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); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the 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).
III. Analysis
Plaintiff alleges that (1) the ALJ failed to comply with the remand order and fully consider all relevant evidence of record, including all pre-disability-onset-date evidence; and (2) when formulating her RFC the ALJ failed to consider and address evidence related to Plaintiff's treatment for her bilateral foot impairments. Pl.'s Br. 1, ECF No. 17.
A. The ALJ's Consideration of the Evidence
Plaintiff contends the ALJ did not comply with the court's remand order because “it is again not clear to what extent she considered and analyzed the pre-disability onset date medical evidence pertaining to Plaintiff's medical treatment at Orthopaedic Specialist[s] of Charleston in May and June, 20[16] for her bilateral [ ] foot pain with Dr. Joshua Lamb and Dr. Blake Ohlsen.” Pl.'s Br. 12-13. Plaintiff also notes that the ALJ did not identify these doctors by name. Id. at 13. Plaintiff concedes that the ALJ's decision “reflects that she did consider and discuss the preonset date medical evidence relating to [Plaintiff's] consultative examinations with Dr. William Maguire on January 25, 2016 and Dr. Cashton Spivey on January 27, 2016[.]” Id. at 12. The Commissioner argues that the “ALJ complied with this Court's remand order and considered relevant evidence from before her amended alleged onset date, including evidence from Orthopaedic Specialists of Charleston.” Def.'s Br. 8, ECF No. 23. The Commissioner notes the ALJ's discussion of Dr. Ohlson's Progress Notes and argues that the “ALJ's discussion of the evidence discussed above belies Plaintiff's claim that it is again unclear whether the ALJ considered Orthopaedic Specialists of Charleston records (ECF No. 17 at 13, 15).” Id. at 10. On Reply Plaintiff argues that “a review of the ALJ's decision reflects that it is again unclear as to whether the ALJ considered and analyzed all of the evidence provided in the medical records from this medical practice in finding that Plaintiff had the residual functional capacity to perform light work prior to her date last insured of December 31, 2019.” Pl.'s Reply Br. 2, ECF No. 25.
In her Decision the ALJ discussed the findings of Plaintiff's July 2016 visit with Dr. Blake L. Ohlson contained in Exhibit 7F of the medical evidence of record. Tr. 527. Exhibit 7F consists of eight pages from three treatment notes from Orthopedic Specialists of Charleston. Tr. 458-65. The May 9, 2016 encounter consists of Plaintiff's visit with Dr. Joshua H. Lamb for complaints of bilateral foot pain. Tr. 463. On examination Dr. Lamb noted that Plaintiff had an antalgic gait, tenderness over the right second metatarsal, and tenderness over the left of first tarsometatarsal joint with joint instability. Id. Dr. Lamb was “concerned” that Plaintiff may have had a stress fracture or midfoot arthritis and ordered an MRI and x-rays. Tr. 464. The x-rays of Plaintiff's feet showed “no evidence of fracture or dislocation.” Id. Dr. Lamb recommended Plaintiff take NSAIDs for pain, use soled shoes for the right foot, ice as needed, and avoid exacerbating activities. Id. Plaintiff returned to Dr. Lamb on June 13, 2016 for review of the MRI. Tr. 460. The impression from the abnormal MRI was as follows for the left foot:
Moderate tendinopathy and likely partial thickness tearing of the distal tibialis anterior tendon at its insertion on the medial cuneiform and base of the first metatarsal. Mild underlying likely stress-related edema in the medial cuneiform without discrete fracture line. Mild surrounding soft tissue edema which tracks along the proximal first metatarsal.
The impression of the right foot was:
Effacement of the fat within the web space at the level of the second and third MTP joints and base of the second and third proximal phalanges. Mild underlying bone marrow edema in the adjacent second and third metatarsal heads. Finding is somewhat atypical location but given appearance, finding is most suggestive of neuroma. Scar/fibrosis related to prior trauma could have a similar appearance.Tr. 461. Dr. Lamb indicated that he outlined a home exercise program with Plaintiff and had a “lengthy discussion” with her about the MRI results. Id. Dr. Lamb noted that Plaintiff “states that she is doing better and that her main difficulty is wearing the shoes required by her job[.]” Id. Dr. Lamb provided Plaintiff with a note “stating she can wear her home shoes which she feels is adequate to deal with her pain.” Id. Plaintiff was to follow up as needed. Id.
Plaintiff returned on July 6, 2016 and was seen by Dr. Ohlson for complaints of “persistent foot pain beneath the second metatarsal.” Tr. 458. Plaintiff noted that she “works at a local grocery store and spends several hours a day [on] her feet. Changes in footwear have not mitigated symptoms. No history of inflammatory disease. Symptoms worse with increasing activity.” Id. On examination Dr. Ohlson noted that Plaintiff had normal motor strength in her upper and lower extremities. Id. The orthopedic examination revealed:
No significant hallux valgus deformity no significant heel cord tightness mild elevated arch height with callus formation tenderness beneath second MTP joint with early crossover toe deformity. Deformity worse on the right. Right second toe also shows early rigid hammertoe formation.Id. Dr. Ohlson noted that recent x-rays of her feet “show early incongruency second MTP joint with slight crossover toe deformity right worse than left.” Id. Dr. Ohlson assessed Plaintiff with crossover toe deformity of both feet and metatarsalgia of both feet. Id. He indicated that Plaintiff's treatment options included “use of a metatarsal pad to offload second MTP joint.” Tr. 459. He noted that due to financial constraints because of the length of recovery time, Plaintiff was unable to pursue surgery, but he indicated that “should this change we discussed tentative surgical intervention as a more permanent means of deriving pain relief.” Id. Dr. Ohlson indicated the potential risks from surgery included nonunion, malunion, infection, wound complication, neurovascular damage, recurrence of deformity, incomplete relief of pain, and need for additional surgery. Id. Plaintiff was instructed for follow up as needed. Id. The ALJ discussed Dr. Ohlson's treatment record in detail and noted that Plaintiff “was not advised to elevate her legs, stay off her feet, or stop working secondary to this condition.” Tr. 527. The ALJ also noted that Plaintiff “has sought no additional treatment for her feet since her mid-2016 visit when she was still engaged in substantial gainful activity.” Id.
Plaintiff's argument is that the ALJ erred because she failed to discuss Dr. Lamb's treatment notes which indicated that Plaintiff “exhibited an altered gait upon ambulation,” failed to mention the abnormal objective findings in the MRI, and “the ALJ merely stated in her decision that ‘surgery was discussed' as a treatment option, and thus ignored the fact that Dr. Ohlson specifically indicated that surgery would be the most beneficial treatment for Plaintiff if she was able to afford it.” Pl.'s Br. 13-14. Plaintiff asserts the ALJ cherry-picked facts to support a finding of non-disability. Id. at 14. The Commissioner contends the remand order did not state that the ALJ was required to “discuss every detail of the Orthopaedic Specialists of Charleston records to demonstrate she considered them[.]” Def.'s Br. 11 (citing Reid v. Comm 'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.”)).
While Plaintiff states Dr. Lamb noted that “she exhibited an altered gait upon ambulation,” the note actually lists “Antalgic gait” as part of Plaintiff's General Examination and refers to tenderness in a right metatarsal joint and a left tarsometatarsal joint. Tr. 463. Despite her antalgic or altered gait, Plaintiff has not stated how that affected her ability to work or how that would impact the ALJ's decision. In fact, Dr. Lamb noted that at the time of his examination Plaintiff was working at the deli counter, Tr. 463, and his treatment plan did not include excusing her from work-he just recommended that she wear different shoes. Tr. 464.
In discussing Plaintiff's impairments at Step Two the ALJ noted that Plaintiff had a history of treatment for “bilateral metatarsalgia and crossover toe deformity” but found these impairments to be “non-severe, as they cause no more than minimal work-related functional limitations.” Tr. 526. These foot impairments were not included in the ALJ's 2018 Decision's listing of impairments. Tr. 24, 551. Although the ALJ did not discuss Plaintiff's antalgic gait or specific MRI results, she noted that “imaging revealed early incongruency at the second MTP joint with slight crossover toe deformity right worse than left (Exhibit 7F).” Tr. 527. As to Plaintiff's assertion that the ALJ mischaracterized Dr. Ohlson's evidence by stating only that “surgery was discussed,” Plaintiff's allegation is incorrect. Dr. Ohlson's note indicated:
Financial constraints precludes this patient from being able to pursue surgical intervention given the time required to recover. However should this change we discussed tentative surgical intervention as a more permanent means of deriving pain relief. Tentative surgical plan would consist of second Weil osteotomy and correction of second hammertoe deformity. Potential risks include nonunion malunion infection wound complication neurovascular damage recurrence of deformity incomplete relief of pain and need for additional surgery. All questions answered options and alternatives explained.Tr. 459 (emphasis added). The ALJ correctly stated that surgery was discussed, and nowhere did Dr. Ohlson indicate, as Plaintiff asserts, that “surgery would be the most beneficial treatment for Plaintiff if she was able to afford it.” Pl.'s Br. 14. Dr. Ohlson discussed surgery as a “more permanent” means of pain relief-but even that came with a substantial number of risks.
ALJs are not required to specifically discuss and analyze every piece of evidence in the case in their narrative opinions so long as it is possible for the reviewing court to realize that all relevant evidence was considered, though not written about, in reaching the ultimate decision. Phillips v. Barnhart, 91 Fed.Appx. 775, 780 n.7 (3d Cir. 2004) (“[T]he ALJ's mere failure to cite specific evidence does not establish that the ALJ failed to consider it.”); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“Although required to develop the record fully and fairly, an ALJ is not required to discuss every piece of evidence submitted.”); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (finding that “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision . . . is not a broad rejection” insufficient to enable the reviewing court to conclude that the ALJ considered the claimant's medical condition as a whole). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations. And whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citation omitted).
Plaintiff is correct that an ALJ may not simply “cherry pick” portions of the evidence to support her conclusions. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017). Here, however, the ALJ addressed Plaintiff's pre-onset-date and post-onset-date medical records, acknowledged her foot impairments, and explained why she found Plaintiff was not limited to the extent she alleged.The ALJ did not improperly cherry-pick the record; her decision is supported by substantial evidence. See Hall v. Saul, No. 1:19-CV-01637-RBH, 2020 WL 6156535, at *9 (D.S.C. Oct. 21, 2020) (finding ALJ appropriately considered the record and had not “cherry-picked” evidence only to support his findings). Furthermore, “Plaintiff does not offer any argument as to how consideration of any of the evidence she cites as allegedly overlooked by the ALJ would change the ALJ's RFC finding or the ALJ's ultimate finding of non-disability.” Doyle v. Kijakazi, No. 2:21-CV-00780-MGB, 2021 WL 9583275, at *5 (D.S.C. Nov. 16, 2021) (emphasis in original). Accordingly, the undersigned finds that any failure of the ALJ to separately discuss each page contained in Exhibit 7 or to refer to the doctors by name is harmless error. See Tanner v. Comm'r of Soc. Sec., 602 F. App'x. 95, 101 (4th Cir. 2015) (concluding, in spite of ALJ's error, reversal not warranted where it was “highly unlikely, given the medical evidence of record, that a remand to the agency would change the Commissioner's finding of nondisability”).
The ALJ noted: “The claimant was not advised to elevate her legs, stay off her feet, or stop working secondary to this condition. I note that the claimant has sought no additional treatment for her feet since her mid-2016 visit when she was still engaged in substantial gainful activity. 2017 and 2018 treatment notes from Dr. Cain, the claimant's primary treating physician, includes no evidence of significant osteoarthritis in the claimant's feet, back, or other joints causing neurological or musculoskeletal limitations.” Tr. 527.
B. The ALJ's RFC Assessment
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4). Social Security Ruling 96-8p requires that the RFC assessment “include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184 at *7. The ALJ must discuss the claimant's ability to “perform sustained work activities in an ordinary work setting” on a regular work schedule. Id. Further, “[t]he 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 medical and other evidence.” Id.
Plaintiff argues the ALJ did not comply with the regulations because “her RFC analysis and findings are completely devoid of any reference to the highly relevant medical evidence from Orthopaedic Specialists of Charleston, including the significant abnormalities revealed by the MRIs of Plaintiff's feet.” Pl.'s Br. 16. Noting that the ALJ cited to Plaintiff's feet numerous times throughout her RFC discussion, the Commissioner contends that “Plaintiff's argument that the ALJ ignored her alleged foot problem in the RFC narrative is wrong.” Def.'s Br. 13.
The ALJ determined that through the date last insured, Plaintiff had the RFC to perform light work as defined in the regulations “except that claimant can frequently sit, stand, and walk, can frequently climb ramps and stairs, and occasionally climb ladders, ropes, and scaffolds, and can frequently stoop, kneel, crouch, and crawl.” Tr. 529. The ALJ discussed Plaintiff's 2018 administrative hearing testimony, including her reports of “severe tendinitis and irreversible nerve pain in her feet” and that “her foot pain is the only condition keeping her from working” despite treatment for other impairments. Tr. 530. The ALJ cited to Plaintiff's December 2015 Function Report in which Plaintiff described working part-time with difficulty and “noted that she is able to walk approximately half a mile at a time.” Id. The ALJ noted that the “medical evidence of record does not reflect any objective abnormalities to suggest that the claimant was incapable of performing work at the above residual functional capacity assessment prior to her date last insured.” Tr. 531. The ALJ stated that she “reviewed all evidence of record submitted by the claimant, including treatment notes from as early as October 2014, over two years prior to her amended alleged onset date, including treatment notes during the periods during which she worked as substantial gainful activities.” Tr. 531. Absent evidence to the contrary, the court takes the ALJ at her word. Reid v. Comm 'r of Soc. Sec., 769 F.3d at 865 (citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)). Over four pages the ALJ discussed both pre- and postonset-date treatment records from Dr. Robert Cain, Plaintiff's primary care physician. Tr. 53134. The ALJ found that “Dr. Cain's findings are additionally inconsistent with and unsupported by the claimant's hearing testimony that she enjoys walking at the gym and in her neighborhood and that she enjoyed pushing weights with her feet.” Tr. 534. The ALJ discussed the January 25, 2016 consultative examination of Dr. William Maguire, the January 27, 2016 psychological evaluation by Dr. Cashton Spivey, and the findings of the State agency medical consultants. Tr. 534-37. The ALJ concluded that her assessed RFC was “supported by the medical evidence of record as a whole.” Tr. 537.
Plaintiff contends the ALJ erred because she did not again discuss the records from Orthopaedic Specialists of Charleston in her Step Three analysis after discussing them at Step Two. However, Fourth Circuit caselaw directs that courts should review the ALJ's decision as a whole. Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011) (on review, the ALJ's decision should be read as a whole, not in isolated parts); McCartney v. Apfel, 28 Fed.Appx. 277, 279 (4th Cir. 2002) (“the ALJ need only review medical evidence once in his decision”); Todd A. v. Kijakazi, No. 3:20-CV-594, 2021 WL 5348668, at *5 (E.D. Va. Nov. 16, 2021) (stating that the ALJ need not use any specific format or magic words to explain her findings, and the decision should be read as a whole)). It is well-settled that an ALJ “‘must build an accurate and logical bridge from the evidence to his conclusion.'” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Here, it is clear from the ALJ's discussion-including that discussion set forth in the previous section of this Report- that she considered the evidence of record and properly articulated the reasons why she found Plaintiff capable of performing work at the assessed RFC level. “The ALJ accurately represented the record as a whole and did not mischaracterize or ignore material facts. We do not require the ALJ to refer specifically ‘to every piece of evidence in his decision.'” Delesline-Meggett v. Comm'r of Soc. Sec., No. 21-1859, 2023 WL 8230802, at *2 (4th Cir. Nov. 28, 2023) (quoting Reid v. Comm 'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)).
The ALJ has the duty to weigh the evidence, resolve material conflicts in the record, and decide the case accordingly. See Richardson v. Perales, 402 U.S. at 399. The ALJ met her statutory and regulatory obligation to assess all of the evidence in the record, and she followed the court's remand instructions to consider pre-onset-date evidence. This court may not reweigh the evidence or substitute its own judgment for the Commissioner's, even if it finds the evidence is susceptible to more than one rational interpretation. See Hays, 907 F.2d at 1456. The ALJ's analysis of the evidence provides a logical bridge between the evidence and her RFC findings. Bennett v. Astrue, No. 1:10-CV-1931-RMG, 2011 WL 2470070, at *3 (finding the ALJ's RFC assessment consistent with the regulations and “that the ALJ's opinion sufficiently explained how he determined Plaintiff's RFC . . . .”). Therefore, the undersigned recommends finding that the ALJ did not fail to assess Plaintiff's RFC to such an extent that it would require remand.
IV. 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, Plaintiff has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through an application on an incorrect legal standard. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g). Further, Plaintiff has not met her burden for remand pursuant to sentence six of 42 U.S.C. § 405(g). Accordingly, the undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.