Opinion
5:20-CV-404-M
02-04-2022
AVERY MORROW, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-20, -23] pursuant to Fed.R.Civ.P. 12(c). Claimant Avery Morrow ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on July 29, 2015, alleging disability beginning April 25, 2014. (R. 15, 154-55). The claim was denied initially and upon reconsideration. (R. 15, 58-83). A hearing before the Administrative Law Judge ("ALJ") was held on July 11, 2019, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 31-57). On August 8, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-30). On June 10, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more i than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform .. . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§404.1520a(e)(3).
In this case, Claimant alleges the following errors: (1) the ALJ failed to find that Claimant had a severe medically determinable mental impairment or associated work-related limitations; and (2) the ALJ failed to identify Claimant's venous insufficiency and lymphedema as severe impairments and the ALJ did not explain the weight given to a statement completed by Claimant's treating vascular physician. PL's Mem. [DE-21] at 7-13.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. (R. 15). At step one, the ALJ found Claimant had not engaged in substantial gainful activity during the period from April 25, 2014, the alleged onset date, through March 31, 2019, her date of last insured. (R. 17). Next, the ALJ determined Claimant had the severe impairment of degenerative disc disease of the cervical spine. Id. The ALJ also found Claimant had the following non-severe impairments: a history of Non-Hodgkin's lymphoma, skin rashes and lesions, a history of MRS A, sarcoidosis, atrial fibrillation, hypertension, varicose veins, anemia, epicondylitis of the right elbow, degenerative changes of the lumbar spine, left ulnar mononeuropathy, and obesity. (R. 17-20). The ALJ noted that Claimant has alleged limitations due to mental impairments, but found that Claimant did not have a medically determinable mental impairment. (R. 20). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R 20-21).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
[T]he claimant can frequently climb ladders, ropes, or scaffolds, and she can frequently reach overhead with the bilateral upper extremities.(R. 21-25). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence. (R. 22). At step four, the ALJ concluded Claimant had the RFC to perform the requirements of her past relevant work as a massage therapist as actually performed. (R. 24). Alternatively, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 24-25).
V. DISCUSSION
A. Mental Impairments
Claimant contends that the ALJ erred in failing to find that Claimant has a severe, medically determinable mental impairment or associated work-related limitations. PL's Mem. [DE-21] at 7-11. Defendant argues that the ALJ properly found no mental impairment and declined to include RFC limitations for a mental impairment because the ALJ based her decision on substantial evidence in the record. Def's Mem. [DE-24] at 4-8.
At step two of the sequential evaluation process, the claimant bears the burden of demonstrating a severe, medically determinable impairment that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. § 404.1509. The Act describes "a physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). A physical or mental impairment must be established by objective medical evidence from an acceptable medical source. 20 C.F.R. § 404.1521. A statement of symptoms, diagnosis, or medical opinion is not sufficient to establish the existence of an impairment. Id. A "licensed physician" or "licensed psychologist" is an "acceptable medical source" as defined in 20 C.F.R. § 404.1502(a).
An impairment is "severe" unless it "has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984); see also 20 C.F.R. § 404.1522 ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities."); Brookover v. Saul, No. 2:20-CV-24-M, 2021 WL 4147075, at *4 (E.D. N.C. June 25, 2021), report and recommendation adopted sub nom. Brookover v. Kijakazi, 2021 WL 3488260 (E.D. N.C. Aug. 9, 2021). As such, the "severity standard is a slight one." Stemple v. Astrue, 475 F.Supp.2d 527, 536 (D. Md. 2007); see also McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (describing the burden of proving the severity of an impairment as "mild" and stating "only claims based on the most trivial impairments" are rejected).
As noted above, when assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
Here, Claimant specifically points to two alleged errors regarding her alleged mental impairment-that the ALJ erroneously found (1) that Allison Mikel was not an acceptable medical source for the purposes of establishing a medically determinable impairment, and (2) that there were no mental abnormalities during the relevant period. PL's Mem. [DE-21] at 8-10. Claimant contends that these errors were not harmless because the ALJ also failed to include any mental limitations in the RFC. Id. Defendant counters that the ALJ's finding Allison Mikel not to be an acceptable medical source was accurate based on the record, and, in any event, is harmless error since the ALJ still discussed Claimant's alleged mental impairment. Def.'s Mem. [DE-24] at 7-8. Defendant next argues, as to Claimant's second point, that evidence in the record supports the ALJ's finding and shows Claimant's mental "symptoms were stable on medication, neurocognitive testing showed no evidence of cognitive impairment, and mental status examinations were generally unremarkable." Id. at 7.
1. Allison Mikel as an acceptable medical source
The ALJ stated that "the record does not show that Ms. Mikel is an acceptable medical source for purposes of establishing a medically determinable impairment," per 20 C.F.R. § 404.1502 and § 404.1521. (R. 20); see (R. 749-82). Defendant notes, additionally, that there is no title or credential after Mikel's electronic signature. Def.'s Mem. [DE-24] at 8; see (R. 753).
As Claimant points out, Allison Mikel's notes in the record stated "[o]ver three hours of physician time was spent interviewing and testing the patient, interpreting and integrating data, neuropsychiatric evaluations, previous records, medical reports, collateral information, and other pertinent psychiatric history." (R. 772) (emphasis added). Mikel is also named as the "provider," and "prescriber." (R. 749-82). Additionally, Mikel is, in fact, identified as a treating healthcare professional and a doctor in the record, on Form SSA-3441, which Claimant completed. (R. 239, 242). Thus, there was evidence in the record indicating Mikel was an "acceptable medical source." (R. 239, 772); see also [DE-21-1] at 2; [DE-21-2] at 1 (evidence attached to Claimant's briefing confirms that Allison Mikel is a licensed psychiatrist and medical doctor). As will be discussed below, this error was not harmless because, as a result of finding Dr. Mikel was not an acceptable medical source, the ALJ failed to consider Dr. Mikel's treatment records at step two, determined Claimant did not have a medically determinable mental impairment, failed to apply the "special technique" at step three, and failed to discuss Claimant's mental impairments in formulating Claimant's RFC.
2. The ALJ's Discussion of Claimant's Mental Impairments
The ALJ's only discussion of Claimant's alleged mental impairments was at step two. The AL J acknowledged Claimant's long history of anxiety and attention-deficit/hyperactivity disorder but found that Claimant's symptoms were stable on medication with few psychiatric complaints. (R. 20). The ALJ also found that mental status examinations did not show objective mental abnormalities during the relevant period. Id. The ALJ next turned to Claimant's treatment, beginning in March 2018, for anxiety, depression, and PTSD with Allison Mikel at Cary Psychiatric. However, the ALJ simply stated that Mikel is not an acceptable medical source without any further discussion. Thus, since the ALJ did not consider Mikel an "acceptable medical source," the ALJ did not consider Dr. Mikel's observations in determining whether Claimant had a medically determinable impairment. Id.
The records cited by the ALJ indicating that Claimant was stable with no objective mental abnormalities largely predate her treatment with Dr. Mikel, while one treatment note references that Claimant had begun treatment for her psychiatric conditions with a "psychiatrist" (presumably, Dr. Mikel) and noted that her affect was normal. (R. 702, 705, 792-93, 804, 814-15, 821-22, 824, 847). In contrast, Dr. Mikel's records from 2018 and 2019, which the ALJ did not consider, included objective testing conducted by Dr. Mikel and indicated Claimant suffered from severe depression, anxiety, and PTSD, she had trouble getting out of bed to engage in day-to-day activities despite compliance with medication, Cymbalta was not helping, her mood was noted to be anxious or sad/depressed, and her affect was noted to be fearful and anxious or sad/depressed. (R. 749- 82); see also (R. 724-47) (records from Claimant's counseling sessions not considered by the ALJ). These records are from an acceptable medical source and are material to the determination of whether Claimant had a medically determinable mental impairment and whether such impairment was severe, 20 C.F.R. § 404.1521, and the ALJ should have considered them in making the step two determination.
"[A]n error at step two in failing to properly consider whether an impairment is severe may be harmless where the ALJ considers that impairment in subsequent steps." Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009) (finding no reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the ALJ considered that impairment in subsequent steps) (citations omitted); see also Shinseki v. Sanders, 556 U.S. 396, 407 (2009); Garner v. Astrue, 436 Fed.Appx. 224, 225, n* (4th Cir. 2011). However, provided that the claimant has at least one severe impairment, the ALJ must consider the combined effect of all of the claimant's impairments, irrespective of whether they are severe, in determining the claimant's RFC. 20 C.F.R. § 404.1545(e); Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989).
The ALJ, presumably because she found Claimant did not have a medically determinable mental impairment, did not assess Claimant's alleged mental impairments in accordance with the "special technique" and wholly failed to discuss Claimant's alleged mental impairments in formulating Claimant's RFC. (R. 20-25). In Juliano v. Saul, the court found that the ALJ erred in failing to consider the claimant's depression and anxiety. No. 7:19-CV-68-D, 2020 WL 3067269 (E.D. N.C. Apr. 30, 2020), report and recommendation adopted, 2020 WL 3066617 (E.D. N.C. June 8, 2020). There, the court noted "[t]he record contains numerous references to Claimant's depression and anxiety," and yet the ALJ did not even mention those impairments, and did not consider whether they were medically determinable or severe or nonsevere. Id. at *5. Similarly, here, while the ALJ did mention Claimant's long history of mental conditions, the ALJ erred in assessing whether Claimant had a medically determinable impairment by not considering Dr. Mikel as an acceptable medical source and not considering Dr. Mikel's records. Because the ALJ at subsequent steps failed to apply the "special technique" or to consider Claimant's alleged mental impairments in formulating the RFC, the error is not harmless. See Jones, 2009 WL 455414, at *2. Accordingly, it is recommended that the case be remanded for the Commissioner to reconsider whether Claimant's alleged mental impairments are medically determinable, severe impairments.
B. Claimant's alleged venous insufficiency and lymphedema
Claimant argues that her peripheral vascular disease and lymphedema are severe impairments because she has been diagnosed with those conditions, compression hose have failed to control her symptoms, and a treating vascular physician recommended that she elevate her legs during the day to control her pain and swelling symptoms. PL's Mem. [DE-21] at 11. Claimant states that at the time of the hearing, she had to elevate her legs intermittently throughout the day to control lower extremity edema. Id. Claimant argues that objective evidence in the record and her testimony show that Claimant's leg swelling makes it difficult to walk and stand, as she has a limping gait with her right foot. Id. at 11-12. Claimant also contends the ALJ failed to address the recommendation of Claimant's vascular physician, Dr. George T. Clark, III, that Claimant elevate her legs to control her symptoms. Id. at 12-13.
Defendant counters that the ALJ did in fact acknowledge Claimant's treatment for varicose veins and evidence of venous reflux and lower extremity swelling, as well as treatment for mild edema in the forearm. Def.'s Mem. [DE-24] at 9; see (R. 19). Defendant states that the ALJ cited Claimant's normal strength and tone, as well as normal range of motion. Def.'s Mem. [DE-24] at 9. Defendant notes that the ALJ mentioned Claimant's being able to dress herself, shop, drive, carry groceries, take her children to school, cook, and do laundry (with help). Id. at 10. Finally, Defendant contends that Dr. Clark's instruction was not a "medical opinion" that the ALJ was required to articulate the persuasiveness of, because it was temporary in nature and did not set out restrictions in the ability to perform the physical demands of work activities. Id. at 10-11.
1. Step Two Severity Determination
At step two, the ALJ stated that Claimant had a multiple conditions, including varicose veins, that were "not severe impairments" and, "[i]n general," were not "medically determinable impairments." (R. 17). The ALJ further stated,
The ALJ refers to Claimant's "varicose veins," which in the treatment records is discussed along with "venous insufficiency" and "lymphedema." (R. 306-31).
The record also shows ongoing treatment for varicose veins since 2014 with some evidence of venous reflux and lower extremity swelling (3F/1, 5, 7, 11, 13-14, 24-25; 6F/16). However, treatment for this has been limited to conservative measures, such as the use of compression hose, and the record shows limited ongoing treatment since September 2014 (6F/16; 3F/7; 4F/7). Additionally, multiple studies have shown no evidence of venous thrombosis or obstruction (3F/11, 13-14).(R. 19).
Only medically determinable impairments are considered beyond step two, and both severe and nonsevere impairments must be considered by the ALJ when formulating the RFC. 20 C.F.R. § 404.1545(a)(2). As explained above, "an error at step two in failing to properly consider whether an impairment is severe may be harmless where the ALJ considers that impairment in subsequent steps." Jones, 2009 WL 455414, at *2.
The ALJ's step-two discussion is ambiguous as to whether she considered Claimant's varicose veins to be "not severe" or not "medically determinable." (R. 17). There is evidence in the record that could arguably support a finding that Claimant's varicose vein impairment is "medically determinable," i.e., "result[s] from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1521; see (R. 306-312) (treatment notes from Carolina Vascular related to Claimant's treatment for varicose veins, noting "prior study" demonstrating Claimant has "reflux in the great saphenous vein"). Meaningful review is frustrated where the court is left to guess at the ALJ's conclusion, Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015), and it is not the court's role to make a determination in the first instance, see Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013) ("Just as it is not our province to 'reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ],' it is also not our province-nor the province of the district court-to engage in these exercises in the first instance.") (internal citation omitted).
Furthermore, the court cannot find the error to be harmless where the ALJ did not consider Claimant's varicose veins in formulating Claimant's RFC. (R. 21-24). The ALJ summarized Claimant's hearing testimony, which included that she was unable to return to work due to a number of conditions, including vascular swelling; due to pain and swelling in her lower extremities, she could not stand or walk for extended periods; and she applied ice and reclined intermittently throughout the day to reduce the swelling in her legs. (R. 22). The ALJ did not further discuss Claimant's varicose veins, her treatment with Dr. Clark at Carolina Vascular, or her testimony regarding the related lower-extremity swelling and need to elevate her legs, (R. 21-24), and the ALJ found Claimant was capable of light work, which may require a good deal of walking or standing, 20 C.F.R. § 404.1567(b). Accordingly, the error was not harmless, and it is recommended that the ALJ clarify the step-two determination regarding Claimant's varicose veins and address this impairment at subsequent steps as appropriate.
2. Statement of Dr. Clark
Dr. Clark of Carolina Vascular evaluated Claimant on July 1, 2014 regarding painful swelling of Claimant's right leg. (R. 306-09). Dr. Clark noted that Claimant reported swelling and pain following radiation and chemotherapy treatment for Hodgkin's disease and after a biopsy of the right femur. (R. 306). Dr. Clark noted that Claimant "has a significant pain and swelling that seemed to start in the area of surgery but involved the entire leg all the way into the ankle." Id. Dr. Clark diagnosed Claimant with varicose veins of the lower extremities with inflammation, and lymphedema, and noted that he suspected lymphatic damage from radiation therapy and exacerbated by the recent surgery. (R. 307). He noted that "[t]here is slight improvement with elevation" and "the discomfort is such that she's been unable to work as a massage therapist." (R. 306). Dr. Clark summarized his impression and treatment plan as follows:
Today I placed her in a thigh-high compressive hose with instructions to elevate her leg at least twice a day. If the swelling persisted it may be worth having lymphedema specialist see her. On that basis I will see her back in one month. I told her I think she still in the early phase from her surgery and this may be a while before her symptoms resolved just from that. If she fails conservative treatment she would be a candidate for laser ablation of the great saphenous vein.(R. 307). Claimant returned to Dr. Clark on August 5, 2014. (R. 310). On that visit, Dr. Clark noted her right leg was worse, she had increasing swelling, she was recently seen in the ER, and he believed further imaging was necessary. (R. 310). Dr. Clark indicated Claimant had pelvic vein reflux and great saphenous reflux and that she may have a pelvic congestion component. Id. On April 23, 2015, Claimant returned to Dr. Clark for a recheck of varicose veins due to increasing problems with swelling in her right leg, but due to Claimant having MRSA, Dr. Clark postposed any treatment for several weeks. (R. 312). There are no additional treatment notes with Dr. Clark in the record.
Claimant contends the ALJ completely failed to address Dr. Clark's recommendation that she elevate her legs to help control her symptoms, and that the error was not harmless because the VE testified that such a restriction would preclude work. PI. 's Mem. [DE-21 ] at 12-13. Defendant contends that Dr. Clark's instruction was not a "medical opinion" that the ALJ was required to articulate the persuasiveness of, because it was temporary in nature and did not set out restrictions in the ability to perform the physical demands of work activities. Def.'s Mem. [DE-24] at 10-11.
"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." 20 C.F.R. § 404.1527(a)(1). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D. N.C. Sept. 24, 2013) (citations omitted).
Defendant cites 20 C.F.R. §§ 404.1513(a)(2) and 404.1520c(b). These regulations govern claims filed on or after March 27, 2017. Claimant filed her claim on July 29, 2015, and, thus, § 404.1527 applies to provide both the definition of "medical opinions" and the framework for evaluating opinion evidence.
Dr. Clark's instruction for Claimant to elevate her leg at least twice a day is not a "medical opinion," as defined in 20 C.F.R. § 404.1527(a)(1). "A recommendation that a patient undertake certain ameliorative measures does not equate to a physical restriction or a judgment about what Plaintiff can still do despite her impairments." Daywalt v. Kijakazi, No. 1:20-CV-277, 2021 WL 3679304, at *8 (M.D. N.C. Aug. 19, 2021) (collecting cases). Furthermore, the limitation Claimant's counsel posed in the hypothetical to the VE was more specific and restrictive than Dr. Clark's instruction. The VE was asked whether "the need to elevate the legs at or above waist level for up to two hours of an eight-hour day" would preclude work, and the VE affirmed that there would be no occupations for an individual so restricted. (R. 55-56). Dr. Clark simply instructed the Claimant to "elevate her leg at least twice a day," with no reference to when, for how long, or in what manner the leg should be elevated. (R. 307). There is no indication from Dr. Clark's instruction that such a limitation would have any bearing on the ability to work. See Maines v. Colvin, No. 1:ll-CV-260, 2014 WL 1920504, at *5 (M.D. N.C. May 14, 2014) (finding a doctor's one-time statement that the plaintiff should elevate her feet did not represent a medical opinion and did not support plaintiff's testimony that she had to elevate her feet for most of the day). Accordingly, the ALJ did not err in failing to evaluate Dr. Clark's statement as a medical opinion.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-20] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-23] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 18, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R Civ. P. 72(b)(3); Local Civ. R 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).