Opinion
Civil Action 2:21-01951-JD-MGB
07-19-2022
FREDRICK MCFADDEN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Fredrick McFadden (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the “Administration”) regarding his claim for Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends that the Commissioner's decision be reversed and that the case be remanded for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff filed an application for SSI on June 25, 2019, alleging disability beginning that same day. (R. at 15, 105, 114, 115, 128.) Plaintiff was 48 years old on the date he filed his application for benefits. (R. at 25, 105, 115.) He alleges disability due to nerve damage in his hands, head, and legs. (R. at 105, 116.) He has past relevant work as an equipment operator, textile worker, and truck driver. (R. at 111-12, 125.)
Plaintiff's application was denied initially on December 10, 2019, and upon reconsideration on June 17, 2020. (R. at 15, 114, 128.) Plaintiff requested a hearing before an Administrative Law Judge (the “ALJ”) on June 22, 2020. (R. at 15, 143.) The hearing was held by telephone on November 19, 2020. (R. at 15, 33-79.) On December 24, 2020, the ALJ issued a decision and found that Plaintiff was not disabled. (R. at 15-26.) The Appeals Council denied Plaintiff's request for review on May 21, 2021, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (R. at 1-6.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since June 25, 2019, the application date (20 CFR 416.971 et seq.).
(2) The claimant has the following severe impairments: degenerative disc disease of the cervical spine and neuropathy of the feet (20 CFR 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift, carry, push, and pull up to 20 pounds occasionally and up to 10 pounds frequently. He can stand and/or walk for 4 hours total throughout a standard 8-hour workday, and can sit for 6 hours total throughout a standard 8-hour workday. He can never climb ladders, ropes, or scaffolds, and can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. He can frequently engage in reaching, handling, and fingering with his bilateral upper extremities, and can occasionally operate foot controls with his bilateral lower extremities. He can tolerate occasional exposure to vibration and must avoid all exposure to hazards such as unprotected heights and moving machinery. He
remains capable of tasks consistent with a reasoning development level of 2 or less as defined in the DOT.
(5) The claimant is unable to perform any past relevant work (20 CFR 416.965).
(6) The claimant was born on November 26, 1970 and was 48 years old, which is defined as a younger individual age 18-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age. (20 CFR 416.963.)
(7) The claimant has a limited education (20 CFR 416.964).
(8) 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).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, from June 25, 2019, the date the application was filed (20 CFR 416.920(g)).(R. at 15-26.)
APPLICABLE LAW
The Act provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A claimant is not eligible for SSI until the date on which he files an application for benefits. 20 C.F.R. § 416.202; see also 20 C.F.R. § 416.501 (stating that a claimant may not be paid SSI for any time period that precedes the first month following the date on which an application was filed); see also Torres v. Chater, 125 F.3d 166, 171 n.1 (3d Cir. 1997) (noting that SSI benefits are not payable for any period prior to the filing of an application). Further, an application for benefits remains in effect until the date of the ALJ's decision. 20 C.F.R. § 416.330; see also Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (holding that a reviewing court is limited to determining “whether the claimant was entitled to benefits during a specific period of time, which period was necessarily prior to the date of the ALJ's decision”).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ erred by: (1) improperly discounting Plaintiff's disability due to his failure to obtain additional treatment; (2) improperly applying “grid rules”; and (3) improperly evaluating the opinion evidence. (Dkt. No. 10 at 16-25.) The Commissioner responds that the ALJ supported his findings with substantial evidence and that his decision is free of legal error. (Dkt. No. 11 at 1.) As such, the Commissioner argues that the decision should be affirmed. (See generally Dkt. No. 11.) Upon review of the ALJ's decision and the record as a whole, the undersigned recommends that the Commissioner's decision be reversed and that the case be remanded for further proceedings in accordance with this Report and Recommendation.
I. ALJ's Decision
In his eleven-page decision, the ALJ considered whether Plaintiff was disabled from his alleged disability onset date through the date of the ALJ's decision. (R. at 15-26.) The ALJ considered Plaintiff's allegations of disability and determined that Plaintiff suffered from the following severe impairments: degenerative disc disease of the cervical spine and neuropathy of the feet. (R. at 18.) In making this conclusion, the ALJ explained that Plaintiff's benign hypertension, diabetes mellitus without complications, hyperlipidemia, headaches, and status-post total right knee arthroplasty minimally impacted Plaintiff's ability to work. (R. at 18.) He therefore considered these impairments to be non-severe. (R. at 18.) The ALJ found that there was not enough evidence in the record to establish that Plaintiff's shoulder pain, nerve damage, blurred vision, weakness in his arms and legs, illiteracy, depression, and anxiety were medically determinable impairments. (R. at 18-19.)
The ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in the official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 19.) He explained that Plaintiff's impairments did not satisfy Listing 1.04 (Disorders of the Spine) because the record lacked evidence of “listing level nerve root compression,” “spinal arachnoiditis,” “spinal stenosis resulting in pseudoclaudication,” and “inability to ambulate effectively.” (R. at 19.) The ALJ further explained that Plaintiff's impairments did not satisfy Listing 11.14 (Peripheral Neuropathy) because the record did not contain evidence of mental functioning limitations. (R. at 20.)
Thus, the ALJ moved on to the RFC determination. (R. at 20-24.) He began by outlining the required two-step process used to determine Plaintiff's RFC and stating that he “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” (R. at 20.) He then described Plaintiff's subjective complaints, including that Plaintiff claims he is unable to work due to spasms in his neck and pain in his lower back. (R. at 21.) The ALJ explained that Plaintiff testified to having migraine headaches and numbness in his legs, which causes him to fall. (R. at 21.) The ALJ recounted that Plaintiff's hands swell, causing him to drop things and have trouble opening doors. (R. at 21.) The ALJ noted that Plaintiff testified to trouble reading and writing. (R. at 21.) The ALJ explained that Plaintiff could not recall the last time he drove, but has a valid driver's license. (R. at 21.) The ALJ mentioned that Plaintiff stated he spends most of his day in bed. (R. at 21.) The ALJ concluded: “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (R. at 21.)
To justify this finding, the ALJ summarized the objective medical evidence in the record. (R. at 21-22.) The ALJ explained that surgery had not been recommended to Plaintiff and that Plaintiff treated his conditions only with medication, which seemed to help his pain. (R. at 21.) The ALJ noted that Plaintiff “continue[d] to seek treatment from primarily one physician, Dr. Kenneth Faile.” (R. at 21.) The ALJ determined that certain of Dr. Faile's observations of Plaintiff's condition were not entirely supported by objective evidence and, therefore, discounted them. (R. at 21.)
The ALJ noted that “claimant's ongoing complaints and the diagnostic studies of record collectively result in some limitations and are accommodated by the claimant's residual functional capacity.” (R. at 21.) He then outlined the limitations he found necessary based on the overall record. (R. at 21-22.) He concluded that Plaintiff's use of a cane “is not required in the claimant's residual functional capacity, given the claimant's normal examination findings.” (R. at 22.) He noted that Plaintiff “presented with [his cane] on only one documented occasion.” (R. at 22.) The ALJ determined that Plaintiff's “continued engagement in a number of activities of daily [living] [we]re inconsistent with disability.” (R. at 22.) He summarized those daily activities before moving on to consider a prior administrative decision and the medical opinion evidence. (R. at 22.)
The ALJ determined that Plaintiff's condition had deteriorated following an unfavorable decision relating to Plaintiff's prior application for a period of disability and disability insurance benefits dated July 18, 2018. (R. at 22.) The ALJ therefore considered the prior decision only somewhat persuasive. (R. at 23.) The ALJ found the opinions of the state agency medical consultants and the consultative examiner minimally persuasive. (R. at 23.) The ALJ found Dr. Faile's various opinions unpersuasive, noting that such opinions appeared to be unsupported by the overall record and that “Dr. Faile appears to be a primary care provider as opposed to a specialist in any field that would pertain to the claimant's documented impairments.” (R. at 2324.) The ALJ also noted that Dr. Faile opined on issues of disability reserved for the Commissioner, and that Dr. Faile's records were vague, subjective, and repetitive. (R. at 24.) Finally, the ALJ determined that the opinion of Dr. Caleb Loring IV, a licensed psychologist, was generally not persuasive because the overall record did not reflect that Plaintiff was illiterate, as Dr. Loring suggested. (R. at 24.)
The ALJ concluded that Plaintiff had the RFC to perform light work with certain postural, manipulative, environmental, and mental limitations. (R. at 24.) With this RFC in mind, the ALJ determined that Plaintiff could not perform any past relevant work. (R. at 24-25.) However, the ALJ concluded that considering Plaintiff's age, education, work experience, and residual functional capacity, jobs that Plaintiff could perform existed in significant numbers in the national economy. (R. at 25-26.) Thus, Plaintiff had not been under a disability since June 25, 2019, the date Plaintiff's application was filed. (R. at 26.)
II. Analysis
A. Plaintiff's Inability to Afford Treatment
Plaintiff contends that the ALJ erred by improperly discounting his disability due to his failure to obtain additional treatment. (Dkt. No. 10 at 16-18.) In response, the Commissioner argues that the ALJ did not draw adverse inferences based on Plaintiff's lack of treatment and therefore contends that Plaintiff's argument is without merit. (Dkt. No. 11 at 8-12.) For the reasons set forth below, the undersigned finds that the ALJ improperly discounted Plaintiff's impairments due to his inability to afford specialized treatment. The undersigned therefore recommends that the Commissioner's decision be reversed and that this case be remanded for further consideration.
At the outset, the undersigned notes that the ALJ's RFC determination relied in large part on Plaintiff's conservative treatment regimen and failure to obtain care from specialists. (R. at 21, 24.) Indeed, the ALJ discounted Plaintiff's neurological issues and mental health issues on account of his failure to obtain additional treatment for these problems. (R. at 21, 24.) More specifically, the ALJ noted: “it appears that surgery has not been recommended despite the alleged severity of the claimant's impairments, and [Plaintiff] has only [been] treated for his conditions with medications.” (R. at 21.) Later, the ALJ determined that medical opinions finding that Plaintiff's overall condition seriously impacted his ability to work were not supported by the record because claimant lacked mental health treatment. (R. at 24.) The ALJ noted “claimant was receiving no specialized treatment or medications for mental health concerns at any time during the period under review.” (R. at 24.)
The record reflects that the ALJ accurately summarized Plaintiff's conservative treatment and that the ALJ was correct in noting that Plaintiff did not receive surgery or other forms of specialized treatment. However, the record also suggests that Plaintiff did not obtain more aggressive and/or specialized treatment because he could not afford to do so. (R. at 65, 433.) For example, Plaintiff testified that he sometimes did not have the money to get his medications. (R. at 65.) In addition, Dr. Faile-Plaintiff's longtime physician whose opinion the ALJ discounted in part because he was not a specialist-noted in June of 2020 that he “would like to get [Plaintiff] further workup by an orthopedist to treat [his] chronic conditions but [Plaintiff] does not have the financial means to do so at this time.” (R. at 433.)
It is well settled that “[a] claimant may not be penalized for failing to seek treatment [he] cannot afford.” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). “As a result, an ALJ should not discount a claimant's subjective complaints on the basis of [his] failure to seek medical treatment when [he] has asserted-and the record does not contradict-that [he] could not afford such treatment.” Dozier v. Colvin, 2015 WL 4726949, *3 (D.S.C. Aug. 10, 2015) (citing Lovejoy, 790 F.2d at 1117).
Here, the ALJ emphasized Plaintiff's failure to receive specialized treatment and discounted medical opinions from Plaintiff's longtime physician in part because he was not a specialist. (R. at 21, 24.) The ALJ never mentioned Plaintiff's alleged inability to afford specialized treatment. (R. at 15-26.) The ALJ did not address Plaintiff's testimony that he was unable to afford his medication at times. (R. at 15-26.) The ALJ also did not address Dr. Faile's note that Plaintiff needed a further workup from an orthopedist but was unable to afford it. (R. at 15-26.) Accordingly, the ALJ's decision did not consider whether Plaintiff's failure to obtain additional treatment was based upon his alleged inability to pay for it. (R. at 15-26.) Courts routinely find remand is warranted under these circumstances. See, e.g., Fleming v. Astrue, No. 5:11-cv-304-DCN-KDW, 2012 WL 3686622 (D.S.C. Jul. 10, 2012) (finding the ALJ's credibility assessment flawed and remanding the case where the ALJ considered the plaintiff's failure to seek treatment as a factor in the disability determination, and the record reflected that the plaintiff did not have the financial resources to obtain treatment), adopted, 2012 WL 3679628 (D.S.C. Aug. 24, 2012); Hagerman v. Colvin, No. 9:13-cv-1709-RMG, 2015 WL 300265 at *5 (D.S.C. Jan. 22, 2015) (remanding where ALJ failed to determine whether inability to pay was the cause of the plaintiff's lack of medical treatment); Thomas v. Colvin, No. 6:15-cv-3251-MBS-KFM, 2016 WL 5109199, *10 (D.S.C. Aug. 24, 2016) (“Courts in this district have consistently found remand necessary where the ALJ considered the claimant's failure to seek treatment in the disability determination despite evidence in the record of the claimant's inability to afford treatment.”) (collecting cases); Ford v. Berryhill, No. 2:17-cv-2394-BHH, 2019 WL 1090721, at *5 (D.S.C. Mar. 8, 2019) (remanding where ALJ failed to “make factual findings regarding Plaintiff's financial situation and its impact on her ability to obtain medical treatment and take her medications as prescribed”).
B. ALJ's Consideration of Dr. Faile's Opinions
The ALJ's failure to consider Plaintiff's inability to afford additional specialized treatment is particularly concerning here because the ALJ dismissed Dr. Faile's opinions that he “considers the claimant disabled, knows of no treatment that would help [Plaintiff's] pain and allow him to return to his work, knows of no job the claimant could possibly do given his present physical and mental health, and does not expect any improvement in [Plaintiff's] health,” in part because such opinions were “not supported by Dr. Faile's examinations of the claimant including the claimant's lack of mental health treatment, including medications.” (R. at 24, referencing R. at 410, 431, 442.) The ALJ continued on to state that “[i]t bears note that the claimant was receiving no specialized treatment or medications for mental health concerns at any time during the period under review” and that “[b]y all accounts, Dr. Faile appears to be a primary care provider as opposed to a specialist in any field that would pertain to the claimant's documented impairments.” (R. at 24.) If the ALJ had considered Plaintiff's inability to afford specialized care, he likely would have given Dr. Faile's opinions more credence, which may have necessitated a finding of disability.
To the extent the Commissioner argues that Dr. Faile's opinions opined on issues reserved for the Commissioner, the Commissioner is correct that the ALJ did not need to consider those portions of Dr. Faile's opinions. 20 C.F.R. § 404.1520b(c)(3). However, the ALJ was still required to consider the remainder of Dr. Faile's statements. 20 C.F.R. § 404.1520c; see also § 404.1527 (“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”).
C. Remaining Allegation of Error
Plaintiff also argues the ALJ erred by improperly applying the “grid rules.” (Dkt. No. 10 at 18-23.) The undersigned does not address this additional allegation of error, as it may be rendered moot on remand. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration this additional argument raised by Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for further proceedings consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).