Opinion
C/A No. 5:18-2069-MGL-KDW
03-25-2020
Michelle Rose Rowell, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF 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, appearing pro se, 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 Supplemental Security Income ("SSI") pursuant to the Social Security Act ("the Act"). Because Plaintiff is proceeding pro se the court is bound to construe her pleadings liberally. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed. I. Relevant Background
A. Procedural History
On February 8, 2016, Plaintiff filed applications for Disability Insurance Benefits ("DIB") and SSI alleging a disability beginning on January 26, 2013. Tr. 358-71. Her applications were denied initially on May 13, 2016, Tr. 132-35, and upon reconsideration on October 21, 2016, Tr. 165-68. Plaintiff requested a hearing before an administrative law judge ("ALJ"). Tr. 197.
Although the Application Summaries are dated February 18, 2016, Tr. 358-71, the Disability Determination and Transmittal indicates a filing date of February 8, 2016. Tr. 132.
On February 28, 2018, Plaintiff appeared with counsel before an ALJ in Charleston, South Carolina. Tr. 41-81. At the hearing Plaintiff's counsel stated that Plaintiff was amending her alleged onset date to August 6, 2016 and was dismissing her claim for DIB. Tr. 47-49. Based on Plaintiff's decision to amend her date of onset, the ALJ dismissed Plaintiff's request for hearing based on the DIB claim and addressed only Plaintiff's claim for SSI. Tr. 49-50. In a written decision dated June 20, 2018, the ALJ denied Plaintiff's application for SSI. Tr. 20-34. Plaintiff requested review of the decision by the Appeals Council. Tr. 289. On July 27, 2018, before the final decision of the Appeals Council, Plaintiff filed her pro se Complaint in this court seeking judicial review of the Commissioner's administrative determination. ECF No. 1. The Commissioner moved to dismiss the Complaint for lack of subject matter jurisdiction based on Plaintiff's failure to exhaust her administrative remedies. ECF No. 26. The undersigned recommended that the Commissioner's motion to dismiss be granted, ECF No. 32; however, before the recommendation was ruled upon, the Appeals Council issued its decision denying Plaintiff's request for review in a notice dated March 27, 2019. Tr. 1-6. The Appeals Council's denial rendered the ALJ's decision the final administrative action of the Commissioner for purposes of judicial review. Tr. 1. The Commissioner moved to withdraw its Motion to Dismiss and that motion was granted. ECF Nos. 37, 38.
B. Plaintiff's Background
Born in August 1966, Plaintiff was 49 years old when she filed her application for SSI and was 51 years old at the time of the administrative hearing. Tr. 385. Plaintiff indicated in her February 18, 2016 Disability Report-Adult form that she completed the 12th grade, did not attend special education classes, and did not complete any type of specialized job training, trade or vocational school. Tr. 390. Plaintiff listed her past relevant work ("PRW") as department store sales associate (Jan. 1999 - Mar. 2001), childcare center lead teacher (2002 - Oct. 2006), merchandising/customer service (Apr. 2006 - May 2008), daycare infant room teacher (Aug. 22, 2011 - June 2012), and home healthcare personal assistant (May 20, 2012 - Oct. 5, 2012). Id. In her Disability Report Plaintiff noted that she stopped working on October 8, 2012 because she was fired, but she indicated that she believed her conditions became severe enough to keep her from working on that same date. Tr. 389. Plaintiff listed her medical conditions as degenerative disc disease, hip, anxiety and depression. Id. Plaintiff indicated that she was 5'7" tall, weighed 157 pounds, and her conditions caused her pain or other symptoms. Id.
In a June 29, 2016 Disability Report-Appeal, Plaintiff indicated a change in her medical condition that occurred January 1, 2016. Tr. 452. Plaintiff noted that her pain was getting worse and she did not sleep. She also noted that she had new medical conditions that she described as follows: "I get [aggravated] easily; I get depressed and I cry all the time. I also have anxiety attacks and panic attacks." Id. Plaintiff indicated worsening changes in her activities due to her conditions and noted that she could not bend or stand because of pain and she got severe muscle spasms in her legs. Tr. 455. In a subsequent Disability Report-Appeal dated November 9, 2016, Plaintiff indicated a change in her medical condition that occurred June 30, 2016. Tr. 461. Plaintiff described the change as "low back pain, hip pain and leg pain keeps getting worse every day. There are days I can't get out of bed because of the pain." Id. Plaintiff noted as a change in her activities that she only leaves the house for doctor appointments. Tr. 464.
C. The Administrative Hearing
Plaintiff appeared with counsel, Attorney Tiana Hinnant, at her administrative hearing on February 28, 2018. Tr. 41. Vocational Expert ("VE") Dawn Bergren also appeared and testified. Id. At the hearing, Plaintiff amended her onset date to August 6, 2016, waived her claim to disability insurance benefits pursuant to Title II of the Act, and withdrew her request for an administrative hearing on her Title II claim. Tr. 47-50.
1. Plaintiff's Testimony
The ALJ reviewed Plaintiff's past employment beginning with her part-time employment at Mosaic Sales Solutions in 2004. Tr. 51. Plaintiff testified that around that same time she also worked in a church daycare taking care of children from six weeks old through a year old. Tr. 51-52. Plaintiff testified that she worked at Hamrick's restocking clothing and assisting customers. Tr. 53-54. Plaintiff confirmed that she had a break in her work history for "about a year or two" but worked for five weeks on a part-time basis for Walmart. Tr. 54. Plaintiff then worked at a Montessori school in the infant room with children aged six weeks to about eighteen months. Tr. 55-56. Plaintiff also worked as a personal assistant for an autistic child for six hours a week. Tr. 56.
Plaintiff testified that she was left-handed, 5'7" tall, weighed 163 pounds, and was currently separated from her husband who is incarcerated. Tr. 57. Plaintiff stated that she lived in "a separate room off the main house at [her] in-law's." Tr. 58. Plaintiff stated that although the house had only one or two steps, she had a "hard time lifting [her] legs up to walk up the steps." Id. Plaintiff explained that she had to hold onto the railing to walk up or down the steps. Id. She testified that because of pain in her legs and hips she had a hard time lifting her legs and would sometimes "have to take [her] hands and actually lift them up." Tr. 59. Plaintiff testified that she also has "trouble bending them and they're real stiff." Id. Plaintiff stated that doctors have never given her any exercises to loosen her muscles, nor had they ever sent her for physical therapy. Id. Plaintiff stated that she never inquired about physical therapy because she does not have the money to do it. Id. Plaintiff stated that daily tasks take her twice as long to do as a normal person, but she does her own laundry because her in-laws are older and disabled. Tr. 60. Plaintiff stated that her room is an enclosed carport that has a kitchen sink and a small bathroom without a shower; she goes into the main house to shower. Id. Plaintiff stated that she prepares only "frozen microwave dinners." Id. Plaintiff testified that the laundry area is outside in a building about ten feet from her living area. Tr. 61. Plaintiff stated that there have been times when she almost dropped her laundry basket because of pain in her lower back, hips, and legs. Id. She indicated this has happened "a couple times a month." Tr. 62. Plaintiff testified that she has a driver's license and is able to drive, but that she does not drive too far because of pain and because of the pain medication that she takes. Id. Plaintiff testified that she drove herself to the hearing because there was no one else to drive her; her in-laws do not have drivers' licenses. Id. Plaintiff testified that she does her own shopping, but it takes her twice as long as a normal person. Id. Plaintiff stated that she goes to the grocery store once a month and buys packaged foods like frozen dinners. She stated that she sometimes buys a six-pack of ginger ale and that is one of the heavier items she purchases. Tr. 63. Plaintiff stated that her brother-in-law, who lives with his parents, helps her get her groceries in the house. Id. Plaintiff stated that another brother-in-law takes her in-laws grocery shopping. Tr. 64.
Plaintiff testified that she completed the twelfth grade and graduated. Tr. 64. Plaintiff stated that she has not worked since she stopped working in 2012. Id. Plaintiff testified that she left her last job because her "pain just got too bad and [she] couldn't lift anymore." Tr. 65. Plaintiff stated that she was working in the infant room but there was "one child that was over a year and a half and still in the infant room." Id. Plaintiff confirmed that she was doing the personal care attendant job at the same time she was working at the daycare. Id.
The ALJ asked Plaintiff to explain the issues she would have with a job where she would be required to lift 20 pounds occasionally, but most times she would be lifting 10 pounds or less; and she would be on her feet, but she would also be able to have a stool, so there would be some opportunity to change positions a couple of times in an hour. Tr. 65-66. Plaintiff testified that it is hard for her to move because of pain in her lower back, legs, and hips. Tr. 66. Plaintiff stated that her legs hurt from her hips to her toes, and they hurt all the time. Id. Plaintiff testified that on a scale of one-to-ten, her pain was at a ten. Tr. 67. Plaintiff testified that her pain was such that she would need to go to the emergency room every day, but she did not because she could not afford to "run up any bills." Id. Plaintiff stated that she has spoken with her doctors and the free clinic about her pain, but they were not doing anything for her. Id. The ALJ noted that in the Spring of 2017 Plaintiff's doctor indicated that her pain was becoming tolerable with the medication. Id. Plaintiff testified that she "never said that to them." Id. Plaintiff stated that doctors have not increased her Gabapentin, have not suggested she see pain management for narcotics, and have not given her any injections lately or put her on any steroid dose packs. Tr. 67-68. The ALJ asked Plaintiff what would keep her from doing a job that was largely sedentary, sitting in a padded office chair, where she might have to walk back and forth from her desk to a copier, or she might have to get a relatively light file from the file room, but there would not be a lot of walking or standing. Tr. 68. Plaintiff stated that the pain would prevent her from doing that job and she remarked that "just sitting here right now is just killing me." Id. When asked how she spent her days Plaintiff testified: "I just keep getting up and down, laying down, and you know, trying to get rid of the pain, trying to get comfortable." Id. Plaintiff stated that she has the TV on "just for the noise" but she does not pay attention to it. Tr. 69. Plaintiff stated that she usually gets out of bed at 6:00 a.m., has a light breakfast and tries to get comfortable. She stated she has a frozen dinner at lunchtime and takes a shower late in the afternoon because her in-laws are still in bed in the morning. Id. She testified that after her shower she just lies in bed and tries to get comfortable. Tr. 70. Plaintiff stated that stretching makes her pain worse, and a heating pad does not help. She testified that she is "in constant pain all the time." Id. Plaintiff stated that she sleeps two hours a day and the rest of the time she is "just tossing and turning, trying to get comfortable, trying to ease the pain, but nothing helps." Id. Plaintiff stated that she can stand for about 5-10 minutes before needing to sit down, she can walk about 15-20 feet, and would need to rest 5-10 minutes before moving on. Tr. 70-71. Plaintiff stated that a grocery trip would take 1.5 to 2 hours because she has to keep stopping. Tr. 71.
In response to questions from her attorney Plaintiff testified that Dr. Hess was a physician at the Healing Place in Conway, a sliding-scale clinic, that was Plaintiff's primary care facility. Tr. 71. Plaintiff stated there came a point when she was unable to afford to go there. Id. Plaintiff confirmed that she now goes to a free clinic, but they do not do x-rays or MRIs. Tr. 72. Plaintiff stated that she has never had an MRI and her last x-ray was in 2015. Plaintiff testified that her back pain has continued since that time and has gotten worse. Id. Counsel indicated that Plaintiff is on two depression and anxiety medications and two pain medications, and asked Plaintiff if she had any side effects. Tr. 72. Plaintiff testified that the medications cause her to be tired and they upset her stomach. Id. Plaintiff confirmed that if the free clinic offered physical therapy at no cost she would do it. Id. Plaintiff confirmed that she takes her medication as prescribed and continues to treat with the free clinic. Tr. 73. Plaintiff stated that the free clinic does not typically fill out medical attendance statements or forms. Id.
The ALJ acknowledged receipt of a handwritten note from a Dr. Hernandez that Plaintiff had provided recently. Tr. 74.
2. VE's Testimony
The VE described Plaintiff's past relevant work according to the Dictionary of Occupational Titles ("DOT") as follows: store laborer, DOT number 922.687-058, medium-performed as heavy, SVP of 2, unskilled; child daycare worker, DOT number 359.677-018, light-performed as medium, SVP of 4, semi-skilled; and sales clerk, DOT number 290.477-014, light-performed as medium, SVP of 3, semi-skilled. Tr. 75-76. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and work experience who could perform the full range of light work with the following limitations:
This person should never operate foot controls, never climb ladders, ropes, or scaffolds. Can occasionally climb ramps and stairs. Can occasionally stoop, crouch, kneel, and crawl. Can occasionally reach overhead. Should no more than occasionally be exposed to vibration. Never be exposed to dangerous chemicals, unprotected heights, or open moving mechanical parts and hazardous machinery.Tr. 76. The ALJ asked if this person could perform any of Plaintiff's past work and the VE responded that the person could perform the jobs of child daycare worker and sales clerk as generally performed but not as actually performed by Plaintiff. Id. The VE identified the following jobs that could accommodate the restrictions identified by the ALJ: laundry folder, DOT number 369-687.018, SVP of 2, unskilled, 443,000 positions in the United States; shipping receiver weigher, DOT number 222.387-074, SVP of 2, unskilled, 71,000 positions in the United States; and office helper, DOT number 239.567-010, SVP of 2, unskilled, 212,000 positions in the United States. Tr. 76-77.
In her second hypothetical the ALJ asked the VE to assume an individual with the same characteristics as in the first hypothetical but the person "could only perform the full range of sedentary work[.]" Tr. 77. The ALJ asked if there were "any semi-skilled or skilled occupations an individual with that profile could perform that require the skills that the Claimant acquired in her past relevant work, but no additional skills?" Id. The VE responded there would be no jobs available. Id. The ALJ asked if there would be any transferrable skills from the jobs of childcare worker and sales clerk and the VE responded in the negative. Id. The ALJ asked if the individual would be able to perform Plaintiff's past work, any of the identified representative jobs, or any work in the national economy if the person "was off task 15% of the eight hour work day, in addition to her normal breaks" and the VE responded in the negative. Id. The ALJ asked the VE to instead assume that the person would be out of work two days per month because of their symptoms. Tr. 77-78. The VE opined that the person would be unable to perform any of Plaintiff's past work, any of the representative jobs, or any other work in the national economy. Tr. 78.
Returning to her initial hypothetical of a person limited to light work, the ALJ asked the VE to assume the following:
[T]his person would need to alternate between sitting and standing. And this person . . . if they were in the walking or standing position or in the sitting position, they would need to alternate, ok, so it's a full - - I want a full alterations in there. And let's just say it happens every hour for no more than five to ten minutes, and that the person could remain on task. In other words, they could be doing some other portion of their job or any portion of their job.Tr. 78. The ALJ asked if the person would be able to perform any of the representative jobs identified in the first hypothetical. The VE responded that the representative jobs would remain, but past work would be eliminated. Id. The VE confirmed that past work would be eliminated if any kind of sit/stand option was put in place. Id. The VE also confirmed that the representative jobs would still remain under the scenario of a sit/stand option that would "alternate between sitting and standing at the work station while completing the task at hand without increasing the time off task for five to ten minutes each hour." Tr. 78-79.
The ALJ asked the VE if her testimony was consistent with the DOT and the VE responded affirmatively, noting that she based her testimony on her "training and education, experience, and job placement." Tr. 79. Plaintiff's counsel had no questions for the VE but renewed her request for a finding of disability under the Grids. Tr. 80. Counsel noted that Plaintiff's x-ray showed degenerative disc disease, but because it was three years old, she asked the court to order a post-hearing x-ray. Id. Counsel also noted that the treating medical provider opinion placed Plaintiff at no more than sedentary work. Tr. 81. II. Discussion
A. The ALJ's Findings
In her June 20, 2018 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since August 6, 2016, the amended alleged onset date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc disease and osteoarthritis (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 perform light work as defined in 20 CFR 416.967(b) except that she must alternate between sitting and standing and from standing/walking to sitting once per hour for five to ten minutes; never operate foot controls; never climb[] ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally stoop, crouch, and crawl; occasionally reach overhead; occasionally be exposed to vibration; never be exposed to dangerous chemicals, unprotected heights, or open, moving, mechanical parts and hazardous machinery.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on August 7, 1966, and was 50 years old, which is defined as an individual closely approaching advanced age, on the amended alleged disability onset date (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (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).Tr. 25, 28-29, 32-34.
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 August 6, 2016, through the date of this decision (20 CFR 416.920(g)).
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. § 1382c(a)(3)(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. § 416.920. 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. § 416.920(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. § 416.925. 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. § 416.920(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. § 416.926; 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 she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the 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 that she is unable 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 287, 290 (4th Cir. 2002) (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, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 428 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).
C. Analysis
In both her Complaint and Brief, Plaintiff asserts that, despite her daily activities, she is disabled. See Compl., ECF No. 1-1; Pl.'s Br., ECF No. 50. Plaintiff asserts that the VE from her 2018 administrative hearing stated there were no jobs available for someone in her condition. ECF No. 1-1 at 2. Plaintiff asserts that the evidence of record, in particular the opinion of Dr. Hess, "confirms the functional limitations." Pl.'s Br. 1. Plaintiff also argues that physicians who did not examine her erred in their opinion, and other physicians are "lying" about her condition. ECF No. 1-1 at 4. The Commissioner asserts that the ALJ "reasonably decided that Plaintiff . . . failed to prove disability within the stringent requirements of the Social Security Act." Def.'s Br. 1, ECF No. 52.
Plaintiff also alleges that the VE at her 2015 administrative hearing made the same finding. ECF No. 1-1 at 2, Pl.'s Br. 2-3.
1. The ALJ's Residual Functional Capacity Assessment
The ALJ determined that during the period alleged, Plaintiff was unable to perform her past relevant work, but she had the RFC to perform a range of light level work with additional limitations. Tr. 29, 32.
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. § 416.946(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. § 416.945(a)(3) and (4).
Here, after "careful consideration of the entire record," the ALJ made the following RFC determination:
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except that she must alternate between sitting and standing and from standing/walking to sitting once per hour for five to ten minutes; never operate foot controls; never climb[] ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally stoop, crouch, and crawl; occasionally reach overhead; occasionally be exposed to vibration; never be exposed to dangerous chemicals, unprotected heights, or open, moving, mechanical parts and hazardous machinery.Tr. 29. In making this finding the ALJ noted that she considered all of Plaintiff's symptoms and the extent to which those symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, including the opinion evidence. Id.
a. ALJ's Consideration of the Plaintiff's Activities of Daily Living
Plaintiff maintains that because she lives alone, she has "no choice but to do [her] own house cleaning, cooking, shopping and laundry." Pl.'s Br. 1.
In considering Plaintiff's RFC, the ALJ discussed the limitations Plaintiff identified in her March 2016 Function Report. Tr. 29. The ALJ noted that Plaintiff indicated that she
is able to perform activities of personal care with difficulty, prepare frozen dinners, do her laundry, and do some light cleaning once a month. She is able to drive, but experiences panic attacks. The claimant shops for groceries once a month, which takes about 2 hours because she has to stop to rest. She does not go anywhere on a regular basis or spend any time with others. She estimates that she can lift 5 pounds and walk 30 to 40 feet before she has to rest for 40 to 60 minutes. The claimant described difficulty paying attention, following instructions, and handling stress (Exhibit E4E).Tr. 29-30. The ALJ also discussed Plaintiff's testimony from the administrative hearing, noting that Plaintiff testified she "is able to do her own laundry, prepare microwave meals, although she has difficulty carrying her laundry basket due to pain in her lower back, hips, and legs." Tr. 30. The ALJ determined that while Plaintiff's medically determinable impairments "could reasonably be expected to cause some of the alleged symptoms . . . 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." Id.
A claimant's daily activities are a factor to be considered when evaluating a claimant's symptoms. 20 C.F.R. § 416.929(c)(3)(i); Johnson v. Barnhart, 434 F.3d at 658 (holding that a claimant's daily activities, such as performing home exercises, taking care of family pets, cooking, and doing laundry, were inconsistent with claimant's complaints of excruciating pain and inability to perform basic physical and mental work activities); Mastro v. Apfel, 270 F.3d 171, 179 (4th Cir. 2001) ("We find that the ALJ correctly applied the law in concluding that [plaintiff's] reported daily activities undermined her subjective complaints of chronic fatigue.").
Here, the ALJ properly considered Plaintiff's daily activities and her RFC assessment for a limited range of light work is consistent with Plaintiff's activities during the relevant period.
b. ALJ's Consideration of the Opinion Evidence
Plaintiff asserts that based on Dr. Hess's functional limitations, she is "unable to perform any other work generally available in the national or regional economies." Pl.'s Br. 1-2. The Commissioner contends that the ALJ reasonably evaluated the medical opinion evidence when formulating Plaintiff's RFC. Def.'s Br. 13.
Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 416.927(a)(1).
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 416.920c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 416.927 is applicable.
Generally, the opinions of treating physicians are entitled to greater weight than other evidence and the regulations have enumerated particular factors for ALJs to consider when evaluating those opinions. See 20 C.F.R. § 416.927(c). If a treating source's medical opinion is "well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight[.]" SSR 96-2p; see also 20 C.F.R. § 416.927(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record). However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curium); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding a physician's opinion should be accorded "significantly less weight" if it is not supported by the clinical evidence or if it is inconsistent with other substantial evidence). The ALJ has the discretion to give less weight to the opinion of a treating physician when there is "persuasive contrary evidence." Mastro v. Apfel, 270 F.3d at 176.
SSR 96-2p was rescinded effective March 27, 2017 for claims filed on or after March 27, 2017 because of revisions to the final rules including that "adjudicators will not assign a weight, including controlling weight, to any medical opinion for claims filed on or after March 27, 2017." See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 96-2p is applicable.
(1) Dr. Hess
On February 17, 2015, Dr. Hess completed a Medical Source Statement of Ability To Do Work-Related Activities (Physical). Dr. Hess opined that Plaintiff could frequently lift and carry up to 10 pounds, occasionally lift and carry 11-20 pounds, and never lift or carry 21-100 pounds. Tr. 514. In support of this assessment Dr. Hess identified the following findings: degenerative changes to L5-S1 on x-ray; pain with bending, stooping, walking; and decreased flexion/rotation L spine. Id. Dr. Hess indicated Plaintiff could sit for 20-30 minutes at one time, stand for 10-15 minutes, and walk for 10 minutes. Tr. 515. Dr. Hess indicated that in an 8-hour workday Plaintiff could sit for 5 hours total, stand for 1-2 hours, and walk for 1 hour. Id. Dr. Hess noted that Plaintiff had "increased pain with prolonged sitting, standing, walking due to degenerative changes at L5-S1 per [patient] she is able to sit and read or watch TV for significant periods of time." Id. Dr. Hess indicated that Plaintiff could bilaterally reach overhead occasionally; reach in all other directions frequently; handle, finger, and feel continuously; and push/pull occasionally. Tr. 516. Dr. Hess indicated Plaintiff could operate foot controls frequently with the right foot and occasionally with the left foot and noted Plaintiff had "pain in left leg foot due to degenerative changes of L spine." Id. Dr. Hess indicated that Plaintiff could occasionally climb stairs and ramps; never climb ladders or scaffolds; frequently balance; occasionally stoop, kneel, crouch; and never crawl. Tr. 517. Dr. Hess indicated Plaintiff could never be exposed to unprotected heights; occasionally be exposed to moving mechanical parts; operating a motor vehicle; frequently be exposed to humidity and wetness; dust, odors, fumes and pulmonary irritants; and occasionally be exposed to extreme cold, extreme heat, and vibrations. Tr. 518. Dr. Hess indicated Plaintiff could tolerate moderate office noise. Id. Dr. Hess noted these limitations were based on "degenerative changes to L spine which limit ROM [range of motion] and walking/climbing/prolonged sitting due to increased pain." Id. Based on Plaintiff's physical impairments Dr. Hess indicated that she could not perform activities like shopping, but she could travel without a companion; ambulate without an assistive device; walk for a block at a reasonable pace on rough or uneven surfaces; use standard public transportation; climb a few steps at a reasonable pace with the use of a single handrail; prepare a simple meal and feed herself; care for personal hygiene; and sort, handle, and use paper/files. Tr. 519.
Dr. Hess also completed a Medical Source Statement of Ability To Do Work-Related Activities (Mental) and indicated that Plaintiff's "ability to understand, remember, and carry out instructions" was not affected by her impairment, and her "ability to interact appropriately with supervisors, co-workers, and the public" was not affected. Tr. 521-22. Dr. Hess indicated that Plaintiff had no other capabilities that were affected by the impairment. Tr. 522.
The record contains only pages 1 and 2 of this 3-page document.
The record also contains two pages that are not signed or dated, but they appear to be part of a different statement related to Plaintiff's abilities. Tr. 523-24. In response to a question asking the doctor to identify any positive objective signs, Dr. Hess indicated reduced range of motion and noted "ROM reduced in all directions—less than optimal effort [with] ROM exam." Tr. 523. Dr. Hess indicated positive supine straight leg raising test of 60 degrees on the left, muscle spasm, abnormal gait (minimal limp), tenderness, and impaired sleep. Id. Dr. Hess indicated that emotional factors contributed to the severity of the patient's symptoms. Id. In response to a question asking about medication side effects, Dr. Hess noted that Plaintiff "does not take any medications for her symptoms." Id. Dr. Hess indicated Plaintiff could walk for one city block without rest or severe pain, sit for 20 minutes at one time, stand for 10 minutes at one time, and in an 8-hour working day she could stand and walk for less than 2 hours, sit for 4-6 hours, and would need a job that permits shifting positions at will from sitting, standing, or walking. Id. Dr. Hess indicated that Plaintiff would need to include periods of walking around during an 8-hour working day. Tr. 524.
These pages appear to have also been completed by Dr. Hess as the handwriting is the same as the other Statements. The second page did not copy properly and only lists one question.
The ALJ considered Dr. Hess's February 2015 Medical Source Statement and attributed partial weight to a portion of the opinion for the following reasons:
Specifically, the limitations on sitting, standing, and walking are inconsistent with the claimant's admitted activities of daily living, most particularly as to her ability to sit. The restrictions on pushing, pulling, and handling are inconsistent with the
largely unremarkable examinations documented in the treatment records. The undersigned finds no evidence of a severe impairment upon which restrictions limiting exposure to wetness, heat/cold, irritants, and noise could be based.Tr. 31. The ALJ gave "great weight to Dr. Hess's opinion as to the claimant's ability to lift, carry, and reach overhead, and other physical limitations set forth in this opinion, as these restrictions are consistent with the record as a whole." Id.
"'[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ 'give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity." Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015). "When, as here, an ALJ denies a claimant's application, the ALJ must state 'specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision." Sharp v. Colvin, 660 F. App'x 251, 257 (4th Cir. 2016). In Sharp, the Fourth Circuit determined that the "ALJ did not summarily conclude that [the doctor's] opinion merited little weight" because the ALJ explained why he discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id. Here, as required by SSR 96-2p, the ALJ's decision contained specific reasons for the partial weight given to Dr. Hess's opinions—inconsistency with ADLs and treatment records, and lack of evidence in the record for environmental limitations. Tr. 31.
The court is not to weigh evidence or substitute its judgment for that of the Commissioner but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays v. Sullivan, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied). An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up "specious inconsistencies," Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has failed to give a sufficient reason for the weight afforded a particular opinion, see 20 C.F.R. § 416.927(c).
While Plaintiff argues that based on Dr. Hess's functional limitations she is unable to work, Pl's Br. 1-2, nowhere in her opinions does Dr. Hess opine that Plaintiff is incapable of working. The undersigned recommends a finding that substantial evidence supports the ALJ's consideration of Dr. Hess's opinions. Austin v. Colvin, No. 0:11-CV-02768-DCN, 2013 WL 1181952, at *4-5 (D.S.C. Mar. 21, 2013) (overruling plaintiff's objections because "the ALJ explained the reasons for the weight given to [the nurse's] opinion and the court can 'follow the [ALJ's] reasoning[.]'").
(2) State Agency Physicians
On initial consideration of Plaintiff's claim, State agency physician Dr. Matthew Fox completed a Physical RFC Assessment of Plaintiff dated May 12, 2016. Tr. 113-15. He indicated that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for a total of 6 hours in an 8-hour workday with normal breaks, sit for about 6 hours in an 8-hour workday with normal breaks, and push/pull an unlimited amount other than the amount shown for lifting and/or carrying. Tr. 113-14. Dr. Fox indicated Plaintiff could occasionally climb ramps/stairs; occasionally climb ladders/ropes/scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl based on Plaintiff's degenerative disc disease, osteoarthritis, muscle spasm, and reduced ROM. Tr. 114. Dr. Fox indicated Plaintiff had manipulative limitations and indicated that she was limited bilaterally with reaching in any direction (including overhead) due to reduced ROM in her wrist. Tr. 114-15. Dr. Fox noted that Plaintiff had no visual, communicative, or environmental limitations. Tr. 115.
On reconsideration of Plaintiff's claim, Dr. Joseph Moore completed a Physical RFC Assessment of Plaintiff on October 20, 2016. Tr. 145-47. Dr. Moore's RFC was identical to Dr. Fox's earlier RFC assessment. Dr. Moore provided the following notation:
Since initial claimant has had several office visits to Helping Hands Clinic with [complaints of] low back, leg, and hip pains. Exams fairly limited (tenderness and paraspinal spasm), rx. with non-narcotic pain management and exercises.Tr. 147.
Evidence of record on RECON does not support any physical worsening nor new impairments. Review of prior rating does not provide a [medically determinable impairment] for any limitation in manipulation, therefore no restrictions are indicated. Otherwise, the prior determination was substantively and technically correct and the prior decision rationale correctly presented and resolved all pertinent issues to be adjudicated. There are no other changes in the functional limitations.
The ALJ considered these opinions and gave "generally great weight to the opinions of the State Agency medical consultants, as they are largely consistent with the medical evidence of record during the period being adjudicated." Tr. 32. However, the ALJ noted that she assessed some additional limitations based on evidence received at the hearing level. Id.
In her Complaint Plaintiff questions how someone could evaluate her just by reading the medical records. ECF No. 1-1 at 4. To the extent Plaintiff is referring to the opinions of the State agency physicians, the fact that these physicians did not examine or treat her are only factors to be considered in weighing an opinion. Opinions from non-examining physicians, such as State agency reviewers, can constitute substantial evidence in support of an ALJ's decision over the opinion of an examining physician so long as the opinions from the non-examining physicians are consistent with the record as a whole. See Smith v. Schweiker, 795 F.2d at 345-46; Stanley v. Barnhart, 116 F. App'x 427, 429 (4th Cir. 2004) (disagreeing with the argument that the ALJ improperly gave more weight to residual functional capacity assessments of non-examining state agency physicians over those of examining physicians and finding that the ALJ properly considered evidence provided by those physicians in context of other medical and vocational evidence); see also 20 C.F.R. § 416.927(e)(2)(i) ("State agency medical and psychological consultants and other program physicians, psychologists, and other medical specialists are highly qualified . . . [and] are also experts in Social Security disability evaluation. Therefore, administrative law judges must consider [their] findings and other opinions . . . as opinion evidence").
This version of the regulation was effective August 24, 2012 to March 26, 2017 and therefore applicable to Plaintiff's claim.
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. 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 v. Sullivan, 907 F.2d at 1456. The undersigned recommends a finding that the ALJ articulated sufficient reasons to support the weight given to the opinions of the State agency physicians.
2. ALJ's Consideration of VE's Testimony
Plaintiff argues that at two different administrative hearings two different vocational experts have testified that she is unable to do past work and there are no other jobs that she can perform. Pl.'s Br. 2-3. The Commissioner contends the ALJ incorporated the functional limitations supported by the record into the hypothetical question to the VE. Def.'s Br. 16.
"The purpose of bringing in a vocational expert is to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); see §§ 404.1560(b)-(c) and 404.1566(e). The ALJ may pose hypotheticals to the VE that "fairly set out all of [the] claimant's impairments." Walker, 889 F.2d at 50; see also Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005) (holding that hypotheticals must "adequately" describe the claimant's impairments). However, the hypotheticals posed by the ALJ need only reflect those impairments supported by
the record. Russell v. Barnhart, 58 F. App'x 25, 30 (4th Cir. 2003) (unpublished) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). Furthermore, an ALJ is not required to accept the answers a VE gives to a hypothetical that contains limitations not ultimately adopted by the ALJ. See Hammond v. Apfel, 5 F. App'x 101, 105 (4th Cir. 2001) (unpublished).Smith v. Colvin, No. 4:12-CV-03588-DCN, 2014 WL 1159056, at *3 (D.S.C. Mar. 20, 2014). The Fourth Circuit has held that "[b]y presenting a hypothetical, the ALJ was not making findings of fact" and therefore could ask the VE contradictory hypotheticals and then decide which scenario "most closely fit the evidence of record." Davis v. Apfel, 162 F.3d 1154 (4th Cir. 1998).
At the February 2018 administrative hearing, the ALJ posed five different hypotheticals to the VE. The first hypothetical considered the full range of light work with some limitations, and the VE testified that the individual could perform Plaintiff's past work as generally performed and other representative work of laundry folder, shipping receiving weigher, and office helper. Tr. 76-77. The ALJ's second hypothetical was for the full range of sedentary work with some limitations and the VE testified the individual would be unable to perform Plaintiff's past work or any other work. Tr. 77. The ALJ's third hypothetical was for a person who would be off task 15% of the eight-hour workday, and the VE testified that person would be unable to perform any of Plaintiff's past work or any of the representative jobs. Id. The ALJ's fourth hypothetical asked the VE to assume a person who would be out of work two days per month because of their symptoms. Tr. 78. The VE testified that person would be unable to perform Plaintiff's past work or any of the representative jobs. Id. The ALJ's fifth hypothetical asked the VE to consider the original hypothetical for light work with the added restriction of the need to alternate between sitting and standing. Id. The VE testified that the representative jobs would be available but past work would be eliminated. Id.
The ALJ's ultimate RFC assessment was based on the final hypothetical to the VE—light work with the ability to alternate between sitting and standing and from standing/walking to sitting. Tr. 29. As noted above, under that scenario the VE testified Plaintiff would be unable to perform her past work but she could perform the other jobs of laundry folder, shipping receiving weigher, and office helper. Tr. 78-79. The ALJ was not required to accept the answers to other hypotheticals presented at the hearing, which included limitations that the ALJ found were not supported by the record. See, e.g, Lee v. Sullivan, 945 F.2d 687, 692 (4th Cir. 1991) (hypothetical posed to a vocational expert must accurately portray the claimant's individual physical and mental impairments, but it need reflect only those impairments that are supported by the record). Accordingly, the undersigned recommends a finding that the ALJ did not err in her treatment or use of the VE's testimony. III. Conclusion and Recommendation
The transcript from the first administrative hearing is not included in the record. However, the undersigned notes that in the 2015 decision, ALJ Keith C. Pilkey determined that, based on the VE's testimony, Plaintiff was capable of performing her past relevant work as a merchandiser or the representative occupations of entry level office clerk, mail sorter, and inventory clerk. Tr. 93-94.
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court finds that Plaintiff has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g). Therefore, it is hereby recommended that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED. March 25, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge