Opinion
C/A No.: 1:17-2076-PMD-SVH
03-21-2018
Melissa J. Sanders-Hall, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On August 14, 2012, Plaintiff protectively filed an application for DIB in which she alleged her disability began on March 22, 2012. Tr. at 87 and 174-81. Her application was denied initially and upon reconsideration. Tr. at 105-09, 111-16. On June 14, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Paul Elkin. Tr. at 31-74 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 14, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-30. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on August 7, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 48 years old on her date last insured. Tr. at 23. She completed the ninth grade. Tr. at 42. Her past relevant work ("PRW") was as a cashier and a fiber machine operator. Tr. at 66. She alleges she has been unable to work since March 22, 2012. Tr. at 174.
2. Medical History
Plaintiff underwent anterior cervical fusion at the C4-5 level in April 2002. Tr. at 337 and 358.
On October 11, 2012, neurosurgeon J. Marc Guitton, M.D. ("Dr. Guitton"), informed Plaintiff that magnetic resonance imaging ("MRI") of her lumbar spine showed degenerative changes with mild-to-moderate stenosis at L4-5. Tr. at 300. He assessed lumbar spondylosis, lumbar disc disease, lumbar radiculopathy, and lumbar stenosis. Id. He advised Plaintiff that treatment options included medications, injections, therapy, and surgery. Id.
On December 12, 2011, Plaintiff presented to pain management specialist Allen L. Sloan, M.D. ("Dr. Sloan"). Tr. at 328. She reported sharp, aching pain across her lower back that was exacerbated by maintaining positions, standing, walking, sitting, and climbing stairs. Id. Dr. Sloan observed Plaintiff to have difficulty rising from a seated to a standing position; a stiff and slightly forward-flexed gait; decreased range of motion ("ROM") to extension; tenderness to palpation in the midline and paraspinal facets at L3-4, L4-5, and L5-S1 and over the bilateral sacroiliac joints; positive Patrick's sign; and pain on straight-leg raise ("SLR") testing. Id. He administered bilateral L3-4, L4-5, and L5-S1 lumbar facet and sacroiliac joint injections. Tr. at 328-29.
On February 20, 2012, Plaintiff reported that her pain had worsened. Tr. at 303. Dr. Guitton observed Plaintiff to have limited motion in her back; lumbar stiffness; positive bilateral SLR testing; and intact strength and sensation. Id. Plaintiff indicated she would consider surgery. Id.
On March 13, 2012, an MRI of Plaintiff's lumbar spine showed moderate central canal stenosis at L4-5. Tr. at 314-15.
On March 23, 2012, Dr. Guitton performed decompressive lumbar laminectomy at Plaintiff's L4-5 level. Tr. at 291. Plaintiff reported she was doing well during a postoperative visit on April 23, 2012. Tr. at 305. Dr. Guitton advised Plaintiff to gradually increase her activity and to be careful with bending and lifting. Id.
Plaintiff presented to Kraig Wangsnes, M.D. ("Dr. Wangsnes"), for sleep apnea follow up on May 1, 2012. Tr. at 395. She complained of an irregular heartbeat and pain in her back and leg. Tr. at 396. Her blood pressure was elevated at 160/90 mm/Hg. Tr. at 397. Dr. Wangsnes encouraged Plaintiff to use her continuous positive airway pressure ("CPAP") machine, to increase her dose of Micardis/Hydrochlorothiazide, and to maintain a log of her blood pressure and pulse readings. Tr. at 396 and 398.
On June 12, 2012, Plaintiff presented to Julie Sears, P.A. ("Ms. Sears"), to follow up on sleep apnea and hypertension. Tr. at 398. She reported she was tolerating her blood pressure medications. Tr. at 399. Ms. Sears reviewed Plaintiff's log and noted that her blood pressure readings were controlled. Id. Her diagnostic impressions were dizziness, controlled hypertension, migraine, palpitations, and degenerative disc disease. Tr. at 400.
On July 16, 2012, Plaintiff complained to Dr. Guitton's nurse of pain in her right knee, left foot, and lower back and swelling in her bilateral ankles and feet. Tr. at 306.
On July 17, 2012, Plaintiff complained of pain in her lower back and left foot. Tr. at 337. Podiatrist Mackie J. Walker, D.P.M. ("Dr. Walker"), observed Plaintiff's left heel temperature to be increased with significant effusion and swelling. Id. He stated he was unable to palpate Plaintiff's pulse on the left side of her foot because of 2+ bilateral pitting edema. Id. He observed decreased sensorium bilaterally on monofilament testing and abnormal sharp/dull and light touch sensation. Id. He noted 4/5 muscle strength, limited dorsiflexion, and exquisite pain on the left Achilles tendon. Id. He described a palpable washboard-type feel to Plaintiff's bilateral plantar fascia that he considered to be consistent with plantar fibromatosis. Id. Dr. Walker indicated ultrasound images showed multiple interligamentous legions. Id. He stated examination of Plaintiff's Achilles tendon revealed a very hypoechoic signal and apparent disruption and tear on the medial aspect. Id. He placed Plaintiff in a controlled ankle movement ("CAM") walker and referred her for an MRI of her left ankle and midfoot. Tr. at 338.
On July 19, 2012, an MRI of Plaintiff's left ankle showed severe distal Achilles tendinopathy, tendinitis, and interstitial partial tearing, as well as mild thickening of the proximal plantar fascia. Tr. at 339. There was no evidence of plantar fibromatosis. Id. An MRI of Plaintiff's right ankle indicated an unremarkable Achilles tendon; very minimal signal abnormality at the plantar fascial insertion; mild hyperintensity surrounding the lateral fascicle; soft tissue edema over the anterolateral ankle and foot; unremarkable medial and lateral flexor and extensor tendons; fluid within the sinus tarsi projecting from the posterior subtalar joint; and intact talofibular, calcaneofibular, and deltoid ligaments. Tr. at 340. It showed no clear evidence of plantar fibromatosis. Id.
On July 31, 2012, Plaintiff complained of pain in her back, foot, left suprascapular area, and bilateral knees. Tr. at 326. Dr. Sloan observed Plaintiff to have positive patellar grinding of the bilateral knees and to be tender in her left suprascapular area, the left paraspinous muscles of her cervical spine, and the medial joint lines of her bilateral knees. Tr. at 327. He assessed "lumbar spondylosis, facet arthropathy, and sacroiliac/hip pain improved with recent lumbar laminectomy," cervical spondylosis and suprascapular neuropathy, and bilateral knee patellofemoral arthritis. Id. He refilled Plaintiff's prescriptions for Flexeril and Lortab and indicated she should follow up in three months for injections. Id.
On August 28, 2012, Dr. Walker informed Plaintiff that the MRI demonstrated interstitial tearing of the left side of the Achilles tendon, tendinitis on the right, and arthritis at the ankle. Tr. at 341. He noted that Plaintiff had significant peripheral neuropathy. Id. He instructed Plaintiff to continue to take Theramine and Naproxen. Id.
On October 9, 2012, Plaintiff reported pain and swelling in her left Achilles area and pain in her knee. Tr. at 371. X-rays of Plaintiff's heel showed modest posterior heel spur formation. Id. Dr. Walker indicated Plaintiff appeared to "have a little periostitis posteriorly and inferiorly," but intact osteology. Id. He stated Plaintiff had "a mild Haglund's deformity, but nothing severe." Id. He prescribed an anti-inflammatory compound of nonsteroidal anti-inflammatory drugs ("NSAIDs"), Ketamine, Tramadol, Bupivacaine, and Clonidine. Id.
On October 30, 2012, Plaintiff complained of left foot pain at the contralateral side, plantar fascia, and Achilles tendon. Tr. at 372. Dr. Walker observed that Plaintiff remained "quite effused at the Achilles tendon with Haglund's deformity and significant periostitis." Id. He placed Plaintiff in a Velocity-type brace to immobilize the back of her left foot. Id.
On November 13, 2012, Plaintiff complained that the topical medication had provided little relief and that the brace had irritated her leg and tendon. Tr. at 373. Dr. Walker observed that Plaintiff continued to have significant Haglund's deformity and bursitis at the medial insertion. Id. He prescribed a steroid, but indicated he would consider surgery. Id.
On November 26, 2012, Dr. Walker described surgery that would include removal of a portion of Plaintiff's left heel bone, repair of the left Achilles tendon, and permanent removal of the third, fourth, and fifth toenails on the right foot. Tr. at 374. Plaintiff communicated her understanding and desire to proceed with surgery, and Dr. Walker performed it on December 28, 2012. Tr. at 374 and 376.
On January 7, 2013, Plaintiff's surgical wounds showed no signs of infection and x-rays of her left heel showed "excellent reduction of deformity." Tr. at 377-78.
On January 14, 2013, Plaintiff reported constant chest heaviness and dyspnea on exertion. Tr. at 401. She complained that she felt claustrophobic and was unable to continue to use her CPAP machine. Id. Ms. Sears indicated Plaintiff's pressure readings had been controlled. Id. A physical examination was normal. Tr. at 403.
On January 7, 2013, Dr. Walker noted that Plaintiff's wounds were healing well, but that she had slight dehiscence proximally. Tr. at 379. He instructed Plaintiff to wean off the walker and to continue to use the ankle-foot orthosis ("AFO") with limited ambulation. Id.
On January 29, 2013, Plaintiff reported minimal discomfort in her feet. Tr. at 380. Dr. Walker observed Plaintiff to have slight central dehiscence, but to be healing. Id. He prescribed a topical wound medication and instructed Plaintiff to begin ROM exercises and increase partial weight bearing as tolerated. Id.
On February 14, 2013, Dr. Walker stated Plaintiff's heel was "remodeling very nicely," but he noted Plaintiff had some wound complications and pain. Tr. at 381. He stated Plaintiff had recently been diagnosed with diabetes. Id. He prescribed another topical wound medication and instructed Plaintiff to monitor her wounds for signs of infection. Id.
On March 11, 2013, Dr. Walker indicated Plaintiff's wound had finally healed and that she was doing "reasonably well." Tr. at 382. He instructed Plaintiff to follow up in three weeks and indicated he would refer her to physical therapy at that time. Id.
Plaintiff presented to Susan J. Tankersley, M.D. ("Dr. Tankersley"), for a consultative examination on March 27, 2013. Tr. at 358-62. She complained of joint pain in her neck, lower back, knee, leg, and left foot. Tr. at 358. She described her lower back pain as frequently radiating to her thoracic spine and rarely radiating to her lower extremities. Tr. at 359. She stated her bilateral anteromedial thighs felt numb all the time. Id. She reported persistent muscle spasms and indicated her pain was exacerbated by prolonged sitting, standing, lifting, and bending. Id. She complained of swelling in her bilateral feet that was worse on the left than the right. Id. She indicated she had experienced prolonged healing following Achilles tendon repair surgery. Id.
Dr. Tankersley observed Plaintiff to be ambulating with a CAM walker and an antalgic and uneven gait. Tr. at 360. Plaintiff's blood pressure was elevated at 150/90 mm/Hg. Id. She was obese at 5' 2" tall and 225 pounds. Id. Dr. Tankersley observed no edema, muscle wasting, or significant degenerative joint changes and intact sensorium, strength, and ROM in Plaintiff's bilateral upper extremities. Tr. at 361. She noted 2+ bimalleolar edema in Plaintiff's left lower extremity and 1+ pretibial edema in her right lower extremity. Id. She indicated Plaintiff had trace effusion in her bilateral knees that was more pronounced on the right. Id. She observed no muscle wasting. Id. She noted that Plaintiff had "fairly scattered paresthesias to touch throughout both legs." Id. She indicated Plaintiff had intact strength on the right and 4 to 4-/5 proximal and distal strength on the left. Id. She stated Plaintiff had intact ROM in her hips. Id. She noted crepitus on ROM of Plaintiff's bilateral knees and decreased ROM to flexion and extension of the right knee. Id. She indicated Plaintiff had positive Lachman's and McMurray's tests at the right knee. Id. She observed reduced ROM of Plaintiff's right ankle. Id. She noted that Plaintiff had "essentially no range of motion at all" at the left ankle, but indicated that she did not "push it" as she had not yet been cleared for physical therapy. Id.
Dr. Tankersley observed Plaintiff to have intact cranial nerves, normal tone, and no rest or indention tremors or bradykinesis. Id. She indicated Plaintiff was unable to toe or heel stand. Id. She was unable to elicit any reflexes. Id. She noted paraspinous muscle spasms in Plaintiff's lumbar and cervical spine and muscle spasms in her trapezius and strap muscles. Id. She indicated Plaintiff's cervical spine was tender in all planes, but that her ROM was normal, aside from right rotation that was reduced to 60 degrees. Id. She stated Plaintiff's lumbar ROM was reduced to 65 degrees on forward flexion, but was otherwise intact. Tr. at 362. The SLR test was negative in the sitting and supine positions. Id. An x-ray of Plaintiff's left knee showed minimal degenerative changes and no acute osseous abnormality. Tr. at 357.
Dr. Tankersley's impressions were chronic neck pain with history of degenerative joint and disc disease of the cervical spine, status post anterior cervical fusion at C4-5; chronic lower back pain with history of degenerative joint disease, degenerative disc disease of the lumbar spine, status post discectomy and laminectomy in July 2012; left foot and ankle pain with history of left Achilles tendinopathy and tear, status post repair in December 2012; right knee pain with probable osteoarthritis and possible internal derangement; new-onset diabetes mellitus; history of sleep apnea; history of hypertension; history of migraine-type headaches; new-onset dysphagia with history of gastroesophageal reflux disease ("GERD"); history of depression and anxiety; and obesity. Tr. at 362.
On June 13, 2013, a colonoscopy showed diverticulitis and multiple colon polyps. Tr. at 713. On August 13, 2013, upper gastrointestinal endoscopy indicated a normal esophagus, stomach, and duodenum. Tr. at 716.
Plaintiff complained of increased pain in her feet and bilateral legs on September 20, 2013. Tr. at 424. She indicated she was hardly able to wear a shoe or ambulate. Id. Dr. Walker observed that Plaintiff's gait was antalgic. Id. X-rays of Plaintiff's bilateral ankles showed recurring bilateral heel spurs with decreased calcaneal inclination angle. Id. Dr. Walker indicated Plaintiff was experiencing pain related to diabetic neuropathy and had significant scarring and thickening of the tendon. Id. He prescribed Metanx. Id.
On September 27, 2013, an MRI of Plaintiff's left ankle showed a greater degree of thickening and signal abnormality within the distal Achilles tendon. Tr. at 426.
Dr. Walker fitted Plaintiff for an orthotic device on October 30, 2013. Tr. at 427. On November 13, 2013, Plaintiff complained of heavy and painful scarring on her anterior ankle and left foot that was irritated by wearing shoes. Tr. at 428. She indicated the orthotic provided relief from plantar fasciitis. Id. Dr. Walker prescribed a scar cream and refilled Metanx. Id.
On November 27, 2013, x-rays of Plaintiff's bilateral knees showed advanced degenerative joint disease that primarily involved the medial tibial femoral compartments and was worse on the right than the left. Tr. at 458.
Plaintiff complained of pain on December 11, 2013. Tr. at 429. Dr. Walker described Plaintiff's Achilles tendon as "quite puffy" and indicated she had either developed a cyst at the Achilles insertion or sustained another tear. Id. An MRI of the left ankle did not suggest a new Achilles tendon tear. Tr. at 431.
On January 16, 2014, Dr. Walker observed Plaintiff to demonstrate an antalgic gait and pain on palpation. Tr. at 432. He instructed Plaintiff to continue home physical therapy and to use the topical compound. Id.
On February 18, 2014, Plaintiff reported that her Achilles tendon was improving and responding well to the topical compound and that her scar was remodeling well. Tr. at 433. She indicated orthotics were providing some relief and support. Id.
On March 11, 2014, Dr. Walker noted that Plaintiff's plantar fasciitis continued to improve, but still persisted. Tr. at 434. He indicated the edema had decreased. Id. He instructed Plaintiff to continue to use the topical compound. Id.
On April 4, 2014, Plaintiff complained of heel and ankle pain with cramping and burning, as well as a fractured right fifth toe. Tr. at 435. Dr. Walker administered an injection of Depo-Medrol and Carbocaine and instructed Plaintiff to continue to take Vimovo. Id.
Plaintiff complained of left ankle and foot pain on May 16, 2014. Tr. at 436. She reported some relief from the injection, but continued to endorse some pain and burning. Id. Dr. Walker observed Plaintiff to have 1+ pedal edema on the right and 2+ pedal edema on the left. Tr. at 438. He noted swelling, deformity, and hindfoot varus on the right and swelling and hindfoot varus on the left. Id. He observed tenderness of the calcaneal tuberosity, the Achilles tendon insertion, and the bilateral plantar fascia and Achilles tendons. Id. Plaintiff demonstrated 4/5 strength in the bilateral peroneus longus, brevis, and gastrocnemius. Tr. at 439. She had no plantar or Babinski reflex on the left or right. Id. She had hypersensitivities at the lateral plantar nerve, the medial plantar nerve, and the deep peroneal nerve and tactile dysesthesia/hyperesthesia in her bilateral distal extremities. Id. Dr. Walker assessed Achilles bursitis, calcaneal spur, tenosynovitis of the foot, plantar fascial fibromatosis, neurological disorder associated with type II diabetes mellitus, thoracic neuritis, obesity, and cellulitis and abscess of the upper arm. Id.
On December 4, 2014, Dr. Walker examined Plaintiff's left heel with ultrasound. Tr. at 443. He noted a thickened and hypoechoic ligament and the plantar facia's insertion into the inferior tuberosity of the left calcaneus. Id. The left plantar fascia was approximately twice its normal thickness. Id. Dr. Walker stated the findings were consistent with acute plantar fasciitis and tarsal tunnel syndrome of the left foot. Id. He administered an injection at the left peroneal area. Id.
On December 30, 2014, Plaintiff rated her pain as a seven. Tr. at 474. She described sharp, aching pain across her back, both hips, and her right knee that was aggravated by activities of daily living ("ADLs"), walking distances, and maintaining positions for any length of time. Id. Dr. Sloan administered bilateral facet joint injections at L3-4, L4-5, and L5-S1. Id.
On January 8, 2015, Dr. Walker observed 1+ pedal edema to Plaintiff's bilateral feet. Tr. at 447. He described Plaintiff as having an antalgic gait on the right and ambulating with a cane. Id. He noted Haglund's deformity, hindfoot varus, and midfoot cavus in the bilateral feet. Id. Plaintiff demonstrated tenderness at the Achilles tendon insertion, sinus tarsi, peroneal retinaculum, and deltoid ligament. Id. She reported painful ROM and decreased subtalar ROM bilaterally. Id. She had 4/5 strength at the bilateral gastrocnemius. Tr. at 448. Her reflexes were diminished in her bilateral ankles. Id. She was hypersensitive at her bilateral medial and lateral plantar nerves. Id. She had tactile dysesthesia/hyperesthesia in her bilateral distal extremities. Id. Tinel's test was positive bilaterally. Id.
Plaintiff presented to Leopoldo Muniz, M.D. ("Dr. Muniz"), for a primary care new patient visit on January 13, 2015. Tr. at 570. Dr. Muniz noted tenderness to Plaintiff's lumbar spine, negative SLR test, and good ROM, sensation, pulses, and strength. Tr. at 571. He instructed Plaintiff to stop smoking and referred her for blood work and urinalysis. Tr. at 572.
On January 22, 2015, Plaintiff rated her pain as an eight and complained of spasms in her lower back and legs. Tr. at 471. Dr. Sloan observed Plaintiff to have an abnormal gait; bilateral shoulder tenderness to palpation; limited ROM and 4/5 muscle strength of the upper extremities; bilateral knee joint crepitus; bilateral hip tenderness radiating to the buttocks; decreased ROM and 4/5 strength of the bilateral lower extremities; middle and lower back tenderness to palpation; 4/5 strength and decreased ROM of the spine; cervical tenderness with palpation; and decreased reflexes. Tr. at 472.
On January 28, 2015, Plaintiff reported doing well in general, but complained of tenderness over her left elbow. Tr. at 568. Dr. Muniz indicated Plaintiff's blood sugar had decreased. Id. He noted a small nodule over Plaintiff's left elbow, but indicated she demonstrated good ROM, sensation, pulses, and strength. Tr. at 569. He referred Plaintiff for an ultrasound of her left elbow and recommended that the frequency of her steroid injections be decreased because of adrenal insufficiency. Id.
On February 12, 2015, Dr. Walker fitted an ankle stabilizer to Plaintiff's right foot. Tr. at 453.
On February 18, 2015, Dr. Muniz indicated the ultrasound showed a cystic mass that was likely a synovial cyst, but possibly a ganglion cyst or schwannoma. Tr. at 581. He recommended an MRI of the left elbow. Id.
On February 19, 2015, Plaintiff rated her pain as a ten. Tr. at 467. Dr. Sloan noted abnormal gait; bilateral shoulder tenderness to palpation; 4/5 muscle strength in the bilateral upper extremities; limited upper extremity ROM; bilateral knee joint crepitus; bilateral hip tenderness radiating into the buttocks; decreased ROM in the bilateral lower extremities; 4/5 muscle strength in the bilateral lower extremities; and decreased reflexes. Tr. at 468. He observed no edema and indicated Plaintiff had intact sensation to light touch. Id. He instructed Plaintiff to quit smoking and to continue to take the same medications. Tr. at 469.
On February 26, 2015, Plaintiff reported some improvement in her right ankle. Tr. at 658. Dr. Walker instructed her to continue the same treatment regimen. Id.
On March 9, 2015, Plaintiff presented to orthopedist Andrew W. Torrance, M.D. ("Dr. Torrance"), for painful swelling of her left elbow. Tr. at 476. Dr. Torrance assessed a complex, multi-lobulated cystic structure at the anterior lateral aspect of Plaintiff's left elbow that was likely a ganglion cyst. Id. He performed ultrasound-guided aspiration on March 11, 2015. Tr. at 477.
On March 12, 2015, Dr. Walker observed Plaintiff to be obese and in distress. Tr. at 492. He indicated Plaintiff was ambulating with crutches and an antalgic gait. Id. He noted 1+ bilateral pretibial edema. Id. He observed deformities in Plaintiff's bilateral feet, tenderness to palpation, decreased ROM and strength, medial column collapse, hammertoe deformities, neurological dysesthesias and hypersensitivities, and positive Tinel's test. Id.
On March 19, 2015, Plaintiff complained of pain in her right knee and lower back. Tr. at 462. She rated her back pain as a seven and her knee pain as a ten. Id. Dr. Sloan observed Plaintiff to ambulate with an antalgic, waddling gait with boots on her bilateral feet; to have bilateral knee joint crepitus; to have bilateral hip tenderness radiating into her buttocks; to demonstrate decreased ROM and 4/5 muscle strength in her bilateral lower extremities; to have minimal bilateral ankle swelling; to demonstrate tenderness to palpation in her lower back; and to demonstrate decreased reflexes. Id. He made no adjustments to Plaintiff's medication regimen. Id.
Plaintiff reported feeling better on March 24, 2015. Tr. at 584. Dr. Muniz continued her on the same medications and instructed her to follow a low-salt diet, avoid caffeine, and monitor her blood pressure. Tr. at 585.
Plaintiff followed up with Dr. Torrance for bilateral knee pain on March 31, 2015. Tr. at 478. Dr. Torrance informed her of treatment options, and Plaintiff opted to receive bilateral knee joint viscosupplementation injections. Id. Dr. Torrance prescribed a Nano medial compartment unloader brace for Plaintiff's right knee. Id.
Plaintiff presented to Karon J. Garman, FNP ("Ms. Garman"), with concerns over low blood pressure on April 8, 2015. Tr. at 574. Ms. Garman assessed tachycardia, hypertension, chronic pain syndrome, and osteoarthritis. Tr. at 575. She recommended that Plaintiff discontinue Coreg, continue Micardis, and begin Metoprolol. Id.
Dr. Torrance administered viscosupplementation injections on April 27 and 28 and May 5, 6, 11, and 12. Tr. at 479, 480, 508, 512, 515, and 518.
On May 14, 2015, Dr. Walker observed Plaintiff to have bilateral 1+ pretibial edema and to be ambulating with crutches and an antalgic gait on the right. Tr. at 487. He noted tenderness and decreased ROM of the bilateral feet. Id. He noted 3/5 posterior tibialis strength on the left and medial column collapse with subluxation of the subtalar, talonavicular, and midtarsal joints. Id. He found hammertoe deformities in the second, third, fourth, and fifth toes of Plaintiff's bilateral feet. Id. He observed areas of dysesthesia, hyperesthesia, and hypersensitivity in Plaintiff's bilateral feet. Id. He noted positive Tinel's test bilaterally. Id.
On May 20, 2015, Plaintiff complained of abdominal pain, nausea, and tachycardia. Tr. at 577. Dr. Muniz noted mild epigastric and right upper quadrant pain with no rebound or rigidity. Tr. at 578. He noted good ROM, sensation, pulses, and strength in Plaintiff's extremities. Id. He assessed abdominal pain, diabetes mellitus, nausea, anxiety, and menopause. Id. He referred Plaintiff for blood work and gallbladder ultrasound and instructed her to continue to increase her liquid and fiber intake and to follow up with Dr. Sloan for pain management. Id.
On June 8, 2015, Plaintiff demonstrated an antalgic gait and crepitus, but had normal ROM and no effusion, erythema, or ecchymosis in her knees. Tr. at 505. Dr. Torrance noted medial and lateral joint line tenderness on the right. Id. He referred Plaintiff to orthopedic surgeon Craig T. Kerins, M.D. ("Dr. Kerins"), for possible arthroscopy, partial meniscectomy, and debridement of the right knee. Id.
Plaintiff presented to Dr. Kerins for consultation on June 9, 2015. Tr. at 500. She reported pain, giving way, popping, and intermittent locking in her knee. Tr. at 501. Dr. Kerins noted that steroid and viscosupplementation injections had been unsuccessful. Id. He observed Plaintiff to have mild varus deformity, 2+ effusion, 20 degree flexion contracture, positive McMurray's sign, and exquisite tenderness to palpation of the right knee. Tr. at 502. He recommended Plaintiff undergo arthroscopic debridement. Id.
On July 21, 2015, Plaintiff underwent right knee arthroscopy with medial meniscectomy and chondroplasty of the medial femoral condyle. Tr. at 496. On July 24, 2014, Dr. Kerins removed Plaintiff's sutures. Tr. at 498. He indicated Plaintiff was doing well, had minimal pain, and could raise her leg well. Tr. at 498.
On October 14, 2015, Plaintiff reported nausea secondary to migraines and post-surgical right knee pain, but indicated she was generally doing well. Tr. at 635. Dr. Muniz observed Plaintiff to have good ROM in her right knee without tenderness. Tr. at 636.
Plaintiff presented to Aiken Regional Medical Center on November 10, 2015, with hypotension, acute renal failure, and severe acidosis. Tr. at 542. She was admitted to the intensive care unit and received hemodialysis treatment. Id. She improved and was discharged on November 14, 2015. Id.
Plaintiff followed up with Dr. Muniz on December 2, 2015. Tr. at 629. She reported fatigue and malaise. Id. Dr. Muniz indicated no abnormalities on physical examination. Tr. at 630-631. He assessed deteriorated unspecified essential hypertension. Tr. at 631.
On January 4, 2016, Plaintiff indicated she was doing well and denied any significant problems. Tr. at 622. Dr. Muniz indicated no abnormalities on examination. Tr. at 623-24.
Plaintiff presented to Dr. Muniz with lower extremity edema on January 21, 2016. Tr. at 605. Dr. Muniz indicated a recent ultrasound showed a cyst on the left kidney, but no evidence of hydronephrosis or nephrolithiasis. Id. He observed Plaintiff to have some swelling of her lower extremities, but indicated it was "better than before." Id.
On February 10, 2016, Dr. Muniz noted tenderness to palpation over Plaintiff's pubic area, but no other abnormalities on exam. Tr. at 601. He indicated Plaintiff's renal insufficiency was mild and unchanged; her hypertension was unchanged; and her diabetes was uncomplicated and unchanged. Id.
Plaintiff presented to nephrologist Douglas A. Stahura, D.O. ("Dr. Stahura"), for an initial consultation on March 15, 2016. Tr. at 670. She complained of insomnia, edema, abdominal pain, and itching. Tr. at 673. Dr. Stahura noted no abnormalities on examination. Tr. at 671. He assessed stage three chronic kidney disease, hypertension, edema, and diabetes and referred Plaintiff for lab work. Tr. at 673-75.
Plaintiff endorsed abdominal pain and joint pain on March 23, 2016. Tr. at 699. Virginia Winburn, M.D. ("Dr. Winburn"), discussed results of a computed tomography ("CT") scan of Plaintiff's abdomen and pelvis. Tr. at 700. She indicated the CT scan showed a thickening of the cecum and noted a right inguinal hernia on physical examination. Id. On March 28, 2016, Chris Carlson, M.D. ("Dr. Carlson"), performed right inguinal hernia repair with mesh on May 26, 2016. Tr. at 696. A colonoscopy revealed no abnormalities on April 6, 2016. Tr. at 703.
On April 14, 2016, Plaintiff reported edema, nocturia, and urinary frequency. Tr. at 665. Dr. Stahura indicated Plaintiff's lab work was consistent with stage three chronic kidney disease. Id. He observed Plaintiff to have 1+ bilateral pedal edema. Id. He discontinued Hydrochlorothiazide and Amlodipine Besylate and prescribed Furosemide. Tr. at 666.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on June 14, 2016, Plaintiff testified that she last worked on March 22, 2012, the day prior to her back surgery. Tr. at 44. She stated she subsequently ruptured her left Achilles tendon while participating in physical therapy and underwent repair surgery in December 2012. Tr. at 45.
Plaintiff described swelling on the bilateral sides of her lower back, numbness from her thighs to her calf and foot, and swelling, burning, and stinging from the area immediately above her knees to her feet. Tr. at 45-46. She indicated she had arthritis in her bilateral knees that was worse on the right. Tr. at 49-50. She stated an orthopedic surgeon had recommended she undergo knee replacement surgery. Tr. at 50. She indicated she had stage III kidney disease and diabetes. Tr. at 51. She endorsed blurred vision as a result of hypertension. Tr. at 53. She reported that arthritis in her neck sometimes caused her to drop items. Tr. at 53-54. She confirmed that she had undergone neck surgery in 2002. Tr. at 54. She stated her pain interfered with her sleep and ability to interact socially. Tr. at 62-63.
Plaintiff testified that Dr. Sloan had administered injections and prescribed pain medication. Tr. at 47-48. She stated she was no longer taking any medication other than Glipidizide, a fluid pill, and aspirin because of chronic kidney disease. Tr. at 49 and 51-52.
Plaintiff testified that she was generally capable of lifting 10 pounds. Tr. at 53. She indicated she could walk through a store for approximately 30 minutes. Tr. at 55. She stated she could stand in one position for "a few minutes." Id. She estimated that she could sit for 15 minutes. Id. She stated that she had sustained a couple of falls. Tr. at 48. She indicated she used a cane when she visited the grocery store, but most often walked in public with her husband's assistance. Id. She denied using a cane to ambulate at home. Tr. at 49. She testified that she spent half of a typical day lying in bed with her legs elevated above her heart to reduce swelling. Tr. at 61-62.
Plaintiff testified that she typically slept for 4.5 at night. Tr. at 56. She stated she was able to perform self-care activities, aside from shaving her legs. Tr. at 56-57. She indicated she was able to cook, vacuum one room at a time, and remove laundry from the dryer. Tr. at 58. She admitted she had a valid driver's license, but testified that she had not driven in three to four weeks because she had recently undergone hernia surgery. Tr. at 40. She stated she had a handicapped placard that Dr. Sloan had authorized prior to 2013. Tr. at 41-42. She indicated she used a computer to pay bills. Tr. at 59.
b. Vocational Expert Testimony
Vocational Expert ("VE") Adger Brown reviewed the record and testified at the hearing. Tr. at 65-70. The VE categorized Plaintiff's PRW as a cashier, Dictionary of Occupational Titles ("DOT") number 211.462-014, as light with a specific vocational preparation ("SVP") of three and a fiber machine operator, DOT number 575.685-030, as light with an SVP of three. Tr. at 66. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift, carry, push, and pull no more than 20 pounds occasionally and 10 pounds frequently; could stand and walk for no more than four hours in an eight-hour workday; could sit for up to six hours in an eight-hour workday; could occasionally stoop, kneel, crouch, balance, and climb ramps and stairs; could not crawl or climb ladders, ropes, or scaffolds; and could not be exposed to hazards such as unprotected heights or moving mechanical parts. Id. The VE testified that the hypothetical individual would be unable to meet the standing and walking requirements of Plaintiff's PRW. Tr. at 66-67. The ALJ asked whether there were any other jobs that the hypothetical person could perform. Tr. at 67. The VE identified unskilled, sedentary jobs as an assembler, DOT number 732.587-010, with 106,000 positions in the national economy; a quality control examiner, DOT number 739.687-182, with 14,000 positions in the national economy; and a parts packer, DOT number 920.687-030, with 7,000 positions in the national economy. Id.
For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who could lift, carry, push, and pull less than 10 pounds; could stand and/or walk for no more than two hours in an eight-hour workday; could sit for six hours in an eight-hour workday; would require a cane to ambulate; would be unable to ambulate on uneven terrain; would require the ability to alternate between sitting and standing at 30-minute intervals while remaining at the work station; would be unable to use the bilateral lower extremities to operate foot controls; could occasionally stoop, kneel, crouch, balance, and climb ramps and stairs; could not crawl or climb ladders, ropes, or scaffolds; could not be exposed to hazards such as unprotected heights or moving mechanical parts; would be limited to simple, routine tasks and simple work-related decisions; would be capable of maintaining concentration, persistence, and pace for periods of two hours; could perform activities within a schedule, maintain regular attendance, and complete a normal workday and workweek; could not interact with the general public on more than an occasional basis; and could not engage in frequent close team-type interaction with coworkers. Tr. at 67-68. The ALJ asked if the hypothetical individual would be able to perform any jobs. Tr. 68. The VE stated the individual would be able to perform the same jobs identified in response to the first hypothetical question if she were able to remain on task while alternating between sitting and standing, but that the number of jobs would be reduced by 50 percent. Id.
For a third hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who would be off task for 20 percent of the workday, in addition to normal breaks. Tr. at 69. He asked if the individual would be capable of performing any work. Id. The VE indicated she would not. Id.
For a fourth hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who would be absent from work on two or more days per month. Id. He asked if there were any jobs the individual would be able to perform. Id. The VE stated there would be no jobs for an individual who was absent from work two or more times per month on a continuing basis. Id.
Plaintiff's attorney asked the VE to consider the limitations set forth in the first hypothetical question, but to further assume the individual would be required to elevate her feet at waist-level for 25 percent of the workday. Tr. at 70. The ALJ stated he would consider that "being off task" and the VE concurred with the ALJ's assessment and indicated the individual would not be able to work. Id.
2. The ALJ's Findings
In his decision dated July 14, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2014. (3D/1).
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of March 22, 2012 through her date last insured of September 30, 2014 (20 CFR 404.1571 et seq).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the cervical and lumbar spine; osteoarthritis of the left knee; tarsal tunnel, Achilles tenosynovitis and bursitis; plantar fascial fibromatosis; obesity; diabetic polyneuropathy; lower extremity edema secondary to chronic kidney disease, stage III (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b): specifically, she has the following limitations: no lifting or carrying over 20 pounds occasionally, or
10 pounds frequently; she can push or pull the same as she can lift or carry; no standing or walking over a total of 4 hours in an 8-hour workday; she can sit for up to 6 hours in an 8-hour work day; no more than occasionally stooping, kneeling, crouching, balancing, climbing ramps and stairs; no crawling, and no climbing ladders, ropes, or scaffolds; no exposure to hazards, such as unprotected heights and moving mechanical parts.Tr. at 13-24. II. Discussion
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on October 2, 1965 and was 48 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant subsequently changed age category to closely approaching advanced age after the expiration of her date last insured (20 CFR 404.1563).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from March 22, 2012, the alleged onset date, through September 30, 2014, the date last insured (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not adequately weigh the medical opinions of record; and
2) the ALJ did not properly consider Plaintiff's subjective allegations of symptoms.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the 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 v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Medical Opinions
The record contains opinions from Plaintiff's treating physicians, Drs. Guitton, Sloan, and Walker; a medical opinion from the consultative physician, Dr. Tankersley; and medical opinions from the state agency consultants. The opinions are summarized as follows:
On April 24, 2012, Dr. Guitton completed a form entitled "Certification of Health Care Provider for Employee's Serious Health Condition." Tr. at 390. He indicated Plaintiff's condition had commenced on March 23, 2012, the date of her lumbar surgery, and was likely to last for six-to-eight weeks. Tr. at 391. He stated Plaintiff was unable to perform any of her job functions as a result of her condition. Id. He specified that Plaintiff could do no extended standing, walking, or sitting and could not bend, lift, twist, push, or pull. Id. He stated it was medically necessary for Plaintiff to be absent from work during flare-ups because of narcotic use, bed rest, possible physical therapy, and other treatments. Tr. at 392.
On August 28, 2012, Dr. Walker stated "[c]learly, [Plaintiff] is unable to work and her activities of daily living are certainly limited." Tr. at 341.
Dr. Tankersley provided the following opinion on March 27, 2013:
Ms. Sanders-Hall looks to have a number of significant orthopedic problems. As always, it is difficult to determine disability in an acute setting, which is the case with her left
Achilles repair. However, my general feeling is that the number, severity and chronicity of her multiple orthopedic complaints will limit her employment to the sedentary to near sedentary [level] at very best. Her lumbar spine pain may preclude even this.Tr. at 362.
Dr. Sloan completed a spinal impairment questionnaire on April 9, 2013. Tr. at 364-370. He reported that Plaintiff had first reported to him for treatment on May 7, 2013, and that he typically treated her every three months. Tr. at 364. He indicated Plaintiff's diagnoses included 721.3 (lumbar spondylosis without myelopathy), 720.2 (sacroilitis), 722.83 (lumbar postlaminectomy syndrome), 724.2 (lumbago), 719.41 (shoulder joint pain), 716.80 (other specified arthropathy), 721.0 (cervical spondylosis without myelopathy), and 719.46 (pain in lower leg joints). Id. He described Plaintiff's prognosis as "fair." Id.
Dr. Sloan noted that Plaintiff demonstrated slightly diminished right cervical ROM; slightly diminished lumbar ROM; positive SLR test; cervical and lumbar tenderness; sensory loss at the quadriceps (front left worse); suprascapular neuropathy; 1+ cervical deep tendon reflexes; muscle weakness in the lumbar spine that compromised the lower left extremity; and swelling in the lower extremities. Tr. at 364-65. He identified an MRI of Plaintiff's cervical spine dated March 24, 2004, a lab report dated April 8, 2005, and MRIs of Plaintiff's lumbar spine dated April 4, 2005 and December 1, 2010, as supporting his diagnoses. Tr. at 366. He stated Plaintiff's primary symptoms included chronic intractable pain, fatigue, neuropathy, morbid obesity, and weakness. Id. He indicated Plaintiff's symptoms and functional limitations were reasonably consistent with the impairments described in the evaluation. Id. He stated Plaintiff had "multiple medical issues" that included lumbar spondylosis with suprascapular neuropathy, degenerative joint disease of the bilateral knees, peripheral edema, and a history of left foot surgery. Id.
Dr. Sloan described Plaintiff's pain as constant and being present in her lower back, neck, chest, shoulders, knees, and ankles. Id. He indicated Plaintiff had sustained on-the-job injuries in 1993 and 2000 that had initially caused her to experience pain. Tr. at 367. He stated Plaintiff's pain was also related to diabetes, morbid obesity, fatigue, and chronic intractable pain syndrome. Id. He claimed he had not been able to completely relieve Plaintiff's pain with medication and without unacceptable side effects. Id.
Dr. Sloan estimated Plaintiff was capable of sitting for two hours in an eight-hour workday and standing/walking for two hours in an eight-hour workday. Id. He indicated Plaintiff could engage in sitting and standing on an intermittent basis and should not sit or stand continuously. Id. He stated Plaintiff would likely need to get up and move around for five to ten minutes out of every 20- to 40-minute period before returning to a seated position. Id. He indicated Plaintiff could frequently lift and carry zero to five pounds; could occasionally lift and carry five to 10 pounds; and could never lift and carry over 10 pounds. Tr. at 367-68. He stated Plaintiff's experience of pain or other symptoms was periodically severe enough to interfere with attention and concentration. Tr. at 368. He indicated Plaintiff was capable of low stress, part-time work. Tr. at 369. He estimated that Plaintiff would require unscheduled breaks of five to ten minutes every 30 minutes to one hour. Id. He indicated Plaintiff's condition interfered with her ability to keep her neck in a constant position. Id. He noted that Plaintiff would have limited vision; could engage in only light pulling; and should perform no kneeling, bending, or stooping. Tr. at 370. He stated the following: "Ms. Hall is living independently but with assisted help from family members." Tr. at 369. "Her demonstrations today were at a partial to failing degree of capability." Id.
On May 1, 2013, state agency medical consultant Irene Richardson, M.D. ("Dr. Richardson"), completed a physical residual functional capacity ("RFC") assessment. Tr. at 82-84. She indicated Plaintiff had the following limitations: occasionally lift, carry, push, and/or pull 20 pounds; frequently lift, carry, push, and/or pull 10 pounds; stand and/or walk for a total of four hours in an eight-hour workday; sit for about six hours in an eight-hour workday; occasionally crouch, kneel, stoop, balance, and climb ramps and stairs; and never crawl or climb ladders, ropes, or scaffolds. Id.
On August 31, 2013, state agency medical consultant Lisa Mani, M.D. ("Dr. Mani"), reviewed the record and completed a physical RFC assessment. Tr. at 96-98. She found that Plaintiff could occasionally lift, carry, push, and/or pull 20 pounds occasionally; could frequently lift, carry, push, and or pull 10 pounds; could stand and/or walk for a total of four hours in an eight-hour workday; could sit for about six hours in an eight-hour workday; could occasionally crouch, kneel, stoop, balance, and climb ramps and stairs; and could never crawl or climb ladders, ropes, or scaffolds. Id.
Dr. Guitton completed a spinal impairment questionnaire on January 21, 2015. Tr. at 417-23. He indicated that he had initially evaluated Plaintiff on September 26, 2011, and had most recently examined her on July 16, 2012. Tr. at 417. He stated Plaintiff's diagnoses included spinal stenosis and degenerative disc disease. Id. He was unsure of Plaintiff's prognosis. Id. He indicated clinical findings of abnormal gait, swelling, crepitus, trigger points, positive bilateral SLR test, and limited ROM, tenderness, spasm, reflex changes, and muscle atrophy of the lumbar spine. Tr. at 417-18. He stated the diagnoses were supported by MRI reports. Tr. at 419. He indicated Plaintiff experienced daily pain in her back and legs that was not completely relieved by medication without unacceptable side effects. Tr. at 419-20. He estimated Plaintiff could sit and stand for less than an hour each during an eight-hour workday. Tr. at 420. He stated Plaintiff should not sit or stand continuously and would need to get up and move around every 20 minutes. Id. He indicated Plaintiff could occasionally lift and carry zero to five pounds, but could lift and carry no more than five pounds. Tr. at 420-21. He indicated Plaintiff's experience of pain or other symptoms was constantly severe enough to interfere with attention and concentration. Tr. at 421. He stated Plaintiff was likely to be absent from work on more than three days per month because of her impairments or treatment. Tr. at 422.
The record contains nurse's notes dated July 16, 2012, but lacks a comprehensive examination note from this date. See Tr. at 306. The last treatment note in the record from Dr. Guitton is dated April 23, 2012. See Tr. at 305.
Dr. Walker completed a physical capacities form on March 2, 2015. Tr. at 460-61. He indicated Plaintiff was capable of sitting for two-to-three hours, standing for one hour, and walking for one hour during an eight-hour workday. Tr. at 460. He stated Plaintiff could occasionally lift, carry, push, and pull ten pounds or less. Id. He indicated Plaintiff could never stoop, kneel, crouch, twist, or climb stairs. Id. He stated Plaintiff would need a job that would permit shifting positions at will from sitting, standing, or walking every 15 to 20 minutes. Id. He indicated Plaintiff could engage in occasional reaching above her shoulder and at waist level. Tr. at 461. He stated Plaintiff could not lift below waist level. Id. He indicated Plaintiff would be unable to use her feet on a repetitive basis. Id. He noted that the restrictions had applied since 2012. Id. He recommended that Plaintiff's legs be elevated at hip level with prolonged sitting and suggested that they should be elevated for 25 to 50 percent of the workday. Id. He indicated prior imaging studies and nerve conduction studies confirmed Plaintiff's diagnoses. Id. He stated he did not consider Plaintiff to be employable on a full time basis in a competitive work environment. Id.
Nerve conduction studies are not included in the record before the court.
Plaintiff argues the ALJ erred in according greater weight to the state agency consultant's RFC assessment than to opinions from her treating and examining physicians. [ECF No. 7 at 17-18 and 21-22]. She maintains the ALJ should have accorded controlling weight to her treating physicians' opinions. Id. at 24. She further contends that the factors in 20 C.F.R. § 404.1527(c) required that the ALJ give greater weight to the opinions of Drs. Guitton, Sloan, Walker, and Tankersley. Id. at 23.
The Commissioner maintains that the ALJ considered the consistency and supportability of the medical opinions and that substantial evidence supports his evaluation. [ECF No. 8 at 10]. She contends the ALJ permissibly relied on the state agency consultant's opinion. Id. at 17-19.
For claims filed before March 27, 2017, "the standards for evaluating medical opinion evidence are set forth in 20 C.F.R. § 404.1527." Brown v. Commissioner of Social Security Administration, 873 F.3d 251, 255 (4th Cir. 2017). ALJs must consider all medical opinions of record. 20 C.F.R. § 404.1527(b).
The regulations direct ALJs to accord controlling weight to treating physicians' medical opinions that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). If a treating physician's opinion is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188 at *2 (1996). However, if the ALJ issues a decision that is not fully favorable, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." Id. at *5. The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).
If an ALJ declines to accord controlling weight to the treating physician's opinion, he must proceed to weigh it and all the other medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c), which include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the medical provider offering the opinion.
The undersigned has considered the ALJ's evaluation of the medical opinions of record based on the foregoing authority.
a. Dr. Guitton's Opinions
Plaintiff argues the ALJ did not adequately weigh Dr. Guitton's opinion. [ECF No. 7 at 18]. She points out Dr. Guitton's specialization as a neurosurgeon and maintains that his opinion was based on his objective findings and other clinical evidence. Id. at 18-19. She claims the medical records support Dr. Guitton's opinion. Id. at 19-20. She contends the ALJ misinterpreted her response to treatment as an indication that she was capable of returning to work. Id. at 20.
The Commissioner argues the ALJ appropriately accorded little weight to Dr. Guitton's notes because they were work excuses, as opposed to opinions of permanent work capabilities. [ECF No. 8 at 11-12]. She maintains that Dr. Guitton did not account for Plaintiff's improvement from surgery. Id. She contends the ALJ was not required to weigh Dr. Guitton's March 2015 statement because it was rendered after Plaintiff's date last insured. Id. at 12-13.
The undersigned declines to address this portion of the Commissioner's argument because it was not offered by the ALJ. "[P]rinciples of agency law limit this Court's ability to affirm based on post hoc rationalizations from the Commissioner's lawyers . . . '[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [his] decision and confine our review to the reasons supplied by the ALJ.'" Robinson ex rel. M.R. v. Comm'r of Soc. Sec., No. 0:07-3521-GRA, 2009 WL 708267, at *12 (D.S.C. 2009) citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002).
The ALJ acknowledged Dr. Guitton's specialization as a neurosurgeon, but found that his March 2012 opinion was entitled to little weight because "it concerned a 'temporary' period of no more than 8 weeks" and constituted a "work excuse rather than an opinion of the claimant's permanent work capabilities." Tr. at 21. He stated the following with respect to Dr. Guitton's March 2015 opinion:
Dr. Guitton's overly restrictive and unsupported assessment is given little weight. Dr. Guitton's opinion that the claimant will have difficulty holding her neck in a constant position contains minimal, if any, support in the record, and is inconsistent with Dr. Guitton's own indication that physical examination findings pertaining to the claimant's cervical spine were normal. (17F/1-2). Moreover, Dr. Guitton's opinions are inconsistent with the claimant's treatment record, which reveals significant improvement following her lumbar laminectomy, and significant pain relief with injections. (6F/3; 20F/1-2, 5-6, 10, 13).Id.
The undersigned agrees with the ALJ's assessment of the March 2012 opinion. In specifying that Plaintiff's period of incapacity was likely to last for 6-8 weeks (Tr. at 391), Dr. Guitton suggested the restrictions were temporary and did not result in permanent disability.
As for Dr. Guitton's March 2015 opinion, the undersigned recommends the court find the ALJ did not adequately consider and weigh it in light of its consistency with the other medical evidence and opinions of record. See 20 C.F.R. § 404.1527(c)(4). The ALJ did not give good reasons to support his decision to accord "little weight" to Dr. Guitton's opinion, as required by 20 C.F.R. § 404.1527(c)(2).
While the record contains some indications that Plaintiff's pain responded to treatment, it is not so one-sided as to suggest that her back pain no longer caused significant functional limitations. Although Dr. Guitton indicated in April 2012 that Plaintiff was doing well, he still advised her to be careful with bending and lifting. Tr. at 305. The next note from Dr. Guitton's office is a July 16, 2012 note from a nurse, who documented Plaintiff's complaints of pain in her right knee, left foot, and lower back and swelling in her bilateral ankles and feet. Tr. at 306. Plaintiff endorsed lower back pain when she presented to Dr. Walker the following day. Tr. at 337. She complained of lower back pain to Dr. Sloan on July 31, 2012, and Dr. Sloan prescribed a narcotic and a muscle relaxant and instructed her to follow up in three months for injections. Tr. at 326-27. On March 27, 2013, Plaintiff complained to Dr. Tankersley of lower back pain, and Dr. Tankersley observed her to have muscle spasms and reduced lumbar flexion. Tr. at 358, 361, and 362. Plaintiff consistently complained to Dr. Sloan of lower back pain and muscle spasms between December 2014 and March 2015, rating the pain as ranging from a seven to a 10. Tr. at 462, 467, 471, and 474. Dr. Sloan observed Plaintiff to have diminished reflexes and tenderness to palpation, 4/5 strength, and decreased ROM in her lumbar spine. Tr. at 462 and 472.
The undersigned notes that the next treatment notes in the record for Dr. Sloan are dated more than 29 months later. See Tr. at 474. However, Dr. Sloan did not indicate in the December 2014 treatment note that Plaintiff had returned for treatment or had not been seen recently. See id. Moreover, Dr. Sloan indicated in the questionnaire that he generally examined Plaintiff every three months and had last examined her on March 21, 2013. See Tr. at 364. In light of this information, it appears that some of Dr. Sloan's treatment notes from the relevant period are absent from the record.
In evaluating Dr. Guitton's opinion, the ALJ failed to acknowledge the consistency between his opinion and the opinions of the other treating and examining physicians. Dr. Guitton's opinion was more restrictive than the opinions of Drs. Sloan and Walker with respect to Plaintiff's abilities to sit, stand, walk, lift, and carry, but all three opinions were consistent to the extent that they suggested Plaintiff could not meet the lifting requirements of work above the sedentary exertional level and was incapable of satisfying the sitting, standing, and walking requirements of an eight-hour workday. Compare Tr. at 420 and 421 (indicating Plaintiff could sit for less than one hour, stand for less than one hour, and lift and carry zero to five pounds occasionally during an eight-hour workday), with Tr. at 367-68 (stating Plaintiff could sit for two hours, stand/walk for two hours, frequently lift and carry zero to five pounds, and occasionally lift and carry five to 10 pounds during an eight-hour workday) and 460 (opining that Plaintiff could sit for two to three hours, stand for one hour, walk for one hour, and occasionally lift, carry, push, and pull 10 pounds or less). Dr. Guitton's opinion was also in accord with the other treating physicians' opinions in that he indicated Plaintiff could not engage in constant sitting or standing; could not maintain her neck in a constant positon; and experienced pain that was severe enough to interfere with attention and concentration. Compare Tr. at 420-421, with Tr. at 368-69 and 460. Dr. Guitton's opinion was also compatible with Dr. Tankersley's opinion that problems with Plaintiff's lumbar spine might preclude even sedentary work. See Tr. at 362.
b. Dr. Sloan's Opinion
Plaintiff argues the ALJ erred in giving little weight to Dr. Sloan's opinion. [ECF No. 7 at 18]. She notes Dr. Sloan's pain management specialization and indicates he relied on clinical evidence of abnormalities to support his opinion. Id. at 19. She claims the medical records support Dr. Sloan's opinion. Id. at 19-20. She contends the ALJ misinterpreted her response to treatment as an indication that she was capable of returning to work. Id. at 20. She maintains that the ALJ improperly assessed her treatment with Dr. Sloan as conservative. [ECF No. 9 at 4-5].
The Commissioner argues the ALJ properly gave little weight to Dr. Sloan's opinion because it was inconsistent with his recommendation of conservative treatment and evidence that Plaintiff's symptoms improved over time. [ECF No. 8 at 14].
The ALJ acknowledged that Dr. Sloan was a treating source, but gave little weight to his opinion. Tr. at 20 and 21. He noted "inconsistencies with the claimant's treatment record, which shows substantial improvement following the claimant's spine surgery, Achilles tendon repair, and receipt of injections. (6F/3; 20F/1-2, 5-6, 10, 13)." Tr. at 21. He found that Dr. Sloan's opinion was "inconsistent with the mostly normal findings on physical examination, also suggesting improvement in the claimant's condition. (27F/1-2, 4, 11, 18)." Id.
The undersigned recommends the court find the ALJ did not adequately evaluate Dr. Sloan's opinion as required by 20 C.F.R. § 404.1527. The ALJ erred in failing to consider the consistency of Dr. Sloan's opinion with the opinions of Drs. Guitton, Walker, and Tankersley for the reasons detailed above. In addition, he failed to acknowledge that Dr. Sloan, as a pain management specialist, was particularly qualified to provide an opinion as to the functional effects of Plaintiff's pain. See 20 C.F.R. § 404.1527(c).
In concluding that Dr. Sloan's opinion was unsupported by mostly normal findings on physical examination, the ALJ ignored objective findings of abnormalities that Dr. Sloan documented during treatment visits and in his opinion. See Tr. at 327 (observing Plaintiff positive patellar grinding of the bilateral knees and tenderness in the left suprascapular area, the left paraspinous muscles of the cervical spine, and the medial joint lines of the bilateral knees); 364-65 (indicating slightly diminished right cervical ROM; slightly diminished lumbar ROM; positive SLR test; cervical and lumbar tenderness; sensory loss at the quadriceps (front left worse); suprascapular neuropathy; 1+ cervical deep tendon reflexes; muscle weakness in the lumbar spine that compromised the lower left extremity; and swelling in the lower extremities); 468 (finding abnormal gait; bilateral shoulder tenderness to palpation; 4/5 muscle strength in the bilateral upper extremities; limited upper extremity ROM; bilateral knee joint crepitus; bilateral hip tenderness radiating into the buttocks; decreased ROM in the bilateral lower extremities; 4/5 muscle strength in the bilateral lower extremities; and decreased reflexes); 472 (noting abnormal gait; bilateral shoulder tenderness to palpation; limited ROM and 4/5 muscle strength of the upper extremities; bilateral knee joint crepitus; bilateral hip tenderness radiating to the buttocks; decreased ROM and 4/5 strength of the bilateral lower extremities; tenderness to palpation in the middle and lower back; 4/5 strength and decreased ROM of the spine; cervical tenderness with palpation; and decreased reflexes). He also erred in classifying as conservative Plaintiff's treatment with Dr. Sloan, which included receipt of injections and narcotic and other medications. Cf. Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (finding that the ALJ erred in classifying the plaintiff's treatment record as "conservative" where it showed "an exhaustive medical history" that included treatment with surgeries, lumbar epidural injections, nerve blocks, radiofrequency ablation, and "powerful analgesics.").
c. Dr. Walker's Opinion
Plaintiff argues the ALJ did not properly evaluate Dr. Walker's opinion. [ECF No. 7 at 18]. She notes Dr. Walker's specialization as a podiatrist and indicates his opinion was based on imaging and nerve conduction studies. Id. at 19. She claims the medical records support Dr. Walker's opinion. Id. at 19-20. She contends the ALJ misinterpreted her response to treatment as an indication that she was capable of returning to work. Id. at 20; ECF No. 9 at 4.
The Commissioner argues Dr. Walker's opinion is a conclusory opinion of disability and is inconsistent with his treatment notes and the other evidence of record. [ECF No. 8 at 13]. She maintains that Dr. Walker provided restrictions prior to surgical repair of Plaintiff's Achilles tendon and that subsequent records showed improvement. Id. at 13-14. She contends Dr. Walker's 2015 opinion was irrelevant because it was rendered after Plaintiff's date last insured. Id. at 14.
The undersigned declines to address this part of the Commissioner's argument because the ALJ did not advance this reason to support his decision to accord little weigh to Dr. Walker's opinion. See Robinson ex rel. M.R. v. Comm'r of Soc. Sec., No. 0:07-3521-GRA, 2009 WL 708267, at *12 (D.S.C. 2009)
The ALJ acknowledged that Dr. Walker was Plaintiff's treating podiatrist. Tr. at 20. He found that Dr. Walker's 2015 opinion was "not well-supported by medically acceptable techniques." Id. He stated the reaching limitations were "unsupported by the record" and were "otherwise outside his area of expertise as a podiatrist." Id. He indicated Dr. Walkers' opinions were "inconsistent with the treatment history, which shows significant healing following the claimant's Achilles tendon repair" and conservative treatment that included "home physical therapy, the use of topical compound, and adjusted orthotics." Id. He stated findings on physical examination following Plaintiff's Achilles tendon repair were "generally normal." Id. He indicated Dr. Walker's opinion that Plaintiff required an assistive device was also "inconsistent with treatment notes that indicate the claimant does not use one" and Plaintiff's "testimony that she only sometimes uses one." Id.
The ALJ addressed Dr. Walker's 2012 opinion, but noted that it was rendered prior to surgery and was "an opinion on a legal issue reserved for the Commissioner." Tr. at 20-21. He indicated he gave little weight to the 2012 opinion. Tr. at 21.
Despite the consistencies noted above between Dr. Walker's 2015 opinion and the opinions of Drs. Guitton and Sloan, the ALJ failed to acknowledge the similarities in the three treating physicians' opinions. The ALJ reduced the credit he gave to Dr. Walker's opinion because he found that an indication that Plaintiff would require an assistive device was inconsistent with the record, but it appears that Dr. Walker did not actually endorse such a limitation. See Tr. at 461 (showing a scratched out check mark beside "Yes"). The ALJ's finding that Dr. Walker's opinion is "not well-supported by medically acceptable techniques" is contradicted by a record that shows Dr. Walker relied on ultrasound, x-rays, MRI reports, abnormal extremity temperature, positive Tinel's sign, positive edema, abnormal pulses, tenderness to palpation, various deformities, decreased muscle strength, abnormal gait, and reduced sensation. See Tr. at 337, 341, 424, 426, 431, 432, 434, 438-39, 443, 447, 448, 487, and 492. The ALJ's conclusion that Plaintiff experienced significant healing is contradicted by a record that suggests Plaintiff experienced prolonged healing; had significant scarring and thickening of the tendon; complained of severe pain; and experienced persistent edema and gait disturbance. See Tr. at 359, 379, 380, 381, 382, 424, 428, 429, 432, 434, 435, 438-39, 447-48, 487, and 492. In classifying Plaintiff's treatment with Dr. Walker as conservative following Achilles tendon repair surgery, the ALJ ignored evidence that Dr. Walker administered injections. Tr. at 435 and 443. He also neglected the fact that Dr. Sloan prescribed narcotic medications for pain management during the period when Dr. Walker was providing treatment. Tr. at 462-75. In light of the foregoing, the undersigned recommends the court find that substantial evidence does not support the ALJ's allocation of little weight to Dr. Walker's opinion.
d. Dr. Tankersley's Opinion
Plaintiff argues the ALJ erred in discounting Dr. Tankersley's opinion to the extent it suggested she was unable to perform sedentary work. [ECF No. 7 at 18]. The Commissioner maintains the ALJ appropriately accorded partial weight to Dr. Tankersley's opinion because it was inconsistent with substantial evidence. [ECF No. 8 at 15-16].
The ALJ accorded partial weight to Dr. Tankersley's opinion in limiting Plaintiff to no more than four hours of standing or walking. Tr. at 22. However, he noted that Dr. Tankersley examined Plaintiff "on only a single occasion, after she had recently undergone surgery" and that the record supported "an improvement in the claimant's condition with treatment." Id. Thus, he found that "Dr. Tankersley's opinion that "the claimant's lumbar spine pain may preclude even 'near sedentary' work, [was] unsupported by the record and her own observations that, 'lumbar spine range of motion was reduced to 65 degrees on forward flexion, [but] [was] otherwise intact,' with negative straight leg raises. (12F/5)." Id.
As discussed in greater detail above, the ALJ neglected to consider that Dr. Tankersley's opinion was consistent with the opinions of all Plaintiff's treating physicians who remarked on her functional limitations. In declaring that Dr. Tankersley's opinion was unsupported by her own observations with respect to Plaintiff's lumbar ROM, the ALJ ignored the other abnormalities that Dr. Tankersley observed. See Tr. at 360-62 (documenting antalgic and uneven gait; 2+ bimalleolar edema in Plaintiff's left lower extremity and 1+ pretibial edema in her right lower extremity; trace effusion in the bilateral knees; scattered paresthesias to touch throughout both legs; 4 to 4-/5 proximal and distal strength on the left; crepitus on ROM of the bilateral knees; decreased ROM to flexion and extension of the right knee; positive Lachman's and McMurray's tests at the right knee; reduced ROM of the right ankle; reduced ROM of the left ankle; inability to toe or heel stand; absent reflexes; paraspinous muscle spasms in the lumbar and cervical spine; muscle spasms in the trapezius and strap muscles; cervical spine tenderness in all planes; and reduced right cervical rotation). Furthermore, the ALJ failed to acknowledge that Dr. Tankersley's opinion did not merely account for functional limitations attributable to Plaintiff's back pain, but considered the cumulative effect of her multiple orthopedic problems and pain. In light of the foregoing, the undersigned recommends the court find that the ALJ did not adequately evaluate Dr. Tankersley's opinion.
e. State Agency Consultant's Opinion
Plaintiff argues the ALJ erred in according greater weight to the opinion of a non-treating, non-examining medical source who had not reviewed much of the evidence. [ECF No. 7 at 21-22]. The Commissioner maintains that ALJs are permitted to rely on state agency consultants' opinions even though a substantial period typically transpires between the time they are rendered and the time the ALJ makes a disability finding. [ECF No. 8 at 17-19].
The ALJ stated he had "not considered" Dr. Richardson's opinion "per SSR 06-3p" because it was "rendered by a single decision maker." Tr. at 22. He gave "significant weight" to Dr. Mani's opinion, finding it to be consistent with Plaintiff's treatment history, "which reveals that the claimant's conditions are controlled such that she can perform a reduced range of light work." Tr. at 22. He noted that "Dr. Mani reviewed a sizeable portion of the medical evidence, and cited specific medical findings to substantiate her opinions." Id. He further indicated Dr. Mani was "a duly qualified physician by virtue of her experience as a state agency medical consultant." Id.
In Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984), the court explained that it is improper for an ALJ to rely on an opinion from a non-treating, non-examining physician that is completely contradicted by other evidence in the record. See Martin v. Secretary, 492 F.2d 905 (4th Cir. 1974). Nevertheless, an ALJ may rely on a non-treating, non-examining physician's opinion that is consistent with the record. Id., citing Kyle v. Cohen, 449 F.2d 489, 492 (4th Cir. 1971). The court found that "if the medical expert testimony from examining or treating physicians goes both ways," meaning that some examining and treating opinions are consistent with the non-treating, non-examining physician's opinion and some are contrary to it, "an ALJ's decision coming down on the side on which the non-examining, non-treating physician finds himself should stand." Id. The instant case does not present such a scenario. The four opinions of record from the treating and examining physicians indicate more significant restrictions than Dr. Mani assessed. Because Dr. Mani's opinion is "completely contradicted by other evidence in the record," substantial evidence does not support the ALJ's decision to accord it significant weight. See Gordon, 725 F.2d at 235.
2. Plaintiff's Subjective Statements
Plaintiff argues the ALJ failed to properly evaluate her testimony. [ECF No. 7 at 24]. She maintains the ALJ erroneously relied on modest and short-lived improvement to discount her allegations. Id. at 26. She contends that the ALJ's observation over the brief period of the hearing was insufficient to assess her ability to function on a day-to-day basis. Id. at 26. She claims her ability to engage in prescribed home exercises does not contradict her allegations or show that she is capable of completing a normal workday. Id. at 26-27.
The Commissioner argues that substantial evidence supports the ALJ's analysis of Plaintiff's subjective allegations. [ECF No. 8 at 19]. She maintains the ALJ relied on the regulatory factors in 20 C.F.R. § 404.1529 to evaluate the nature, intensity, frequency, and severity of Plaintiff's symptoms and their impact on her ability to work. Id. at 20.
The Social Security Administration uses a two-step process to evaluate a claimant's subjective symptoms. First, the ALJ must determine whether the claimant has a medical impairment that results from anatomical, physiological, or psychological abnormalities and that could reasonably be expected to produce the pain or other symptoms alleged. 20 C.F.R. § 404.1529(b) (effective Jun. 13, 2011 to Mar. 26, 2017). After having determined that the medical signs or laboratory findings support the existence of a medically-determinable impairment that could reasonably be expected to produce the alleged symptoms, the ALJ should evaluate the intensity and persistence of the claimant's symptoms to determine how they affect her capacity for work. 20 C.F.R. § 404.1529(c) (effective Jun. 13, 2011 to Mar. 26, 2017). This requires an assessment of all the available evidence, to include the claimant's treatment history; signs and laboratory findings; statements from the claimant, the claimant's treating and non-treating medical sources, and other persons; and the medical opinions of record. 20 C.F.R. § 404.1529(c)(1) (effective Jun. 13, 2011 to Mar. 26, 2017).
The ALJ is not to "evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled. SSR 16-3p, 2016 WL 1119029 at *4 (2016). "Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone," the ALJ is to "carefully consider any other information" about the claimant's symptoms. 20 C.F.R. § 404.1529(c)(3) (effective Jun. 13, 2011 to Mar. 26, 2017). The following factors are relevant to the claimant's symptoms: her ADLs; the location, duration, frequency, and intensity of her pain or other symptoms; factors that precipitate and aggravate her pain; the type, dosage, effectiveness, and side effects of any medication she takes or has taken to alleviate pain or other symptoms; treatment, other than medication, she receives or has received for relief of pain or other symptoms; any measures other than treatment she uses or has used to relieve pain or other symptoms; and any other factors concerning her functional limitations and restrictions due to pain or other symptoms. Id.; SSR 16-3p, 2016 WL 1119029 at *7.
In evaluating the non-objective evidence, the ALJ is to consider the claimant's "statements about the intensity, persistence, and limiting effects of symptoms" and should "evaluate whether the statements are consistent with objective medical evidence and other evidence." SSR 16-3p, 2016 WL 1119029 at *6. He may compare the claimant's statements to information she provided to her medical sources regarding the onset, character, and location of her symptoms; factors that precipitate and aggravate her symptoms; the frequency and duration of her symptoms; change in her symptoms (e.g., whether worsening, improving, or static); and ADLs. Id.
The ALJ stated as follows:
After careful consideration of the evidence, the undersigned finds that 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 below.Tr. at 17. He indicated the evidence did not "support the alleged severity of the claimant's impairments." Id. He stated he had "observed the claimant's normal gait, without any exhibited pain, limp, or use of a handheld assistive device and noted she "was able to sit down without issue." Id.
The ALJ pointed out that "[b]y July 2012, the claimant's lumbar spondylosis, facet arthropathy, sacroiliac joint pain, were noted as 'improved with recent lumbar laminectomy.' (6F/2) [emphasis added]." Tr. at 18. He indicated that a month following foot surgery, Plaintiff "reported minimal discomfort" in her left Achilles area. Id. He recognized that Dr. Walker observed Plaintiff to have an antalgic gait and diagnosed diabetic neuropathy, but found that Plaintiff received conservative treatment and, "[b]y March 2014," her "edema had decreased, and her plantar fascia was noted to show continued improvement." Tr. at 19. He stated "[t]he record reveals that the claimant's condition responds to treatment" and noted that Plaintiff reported significant pain reduction with use of injections and oral medication. Id. He indicated that references in the record to Plaintiff engaging in home exercise suggested she was "at least somewhat functional." Id. The ALJ noted that Plaintiff reported no complaints and had normal findings during some of her more recent treatment visits. Id. He acknowledged that Plaintiff had undergone right knee arthroscopy and treatment for chronic kidney disease in 2015 and 2016. Id.
In finding Plaintiff's subjective allegations to be inconsistent with the record, the ALJ relied on his observations of Plaintiff's gait and ability to sit during the hearing. See Tr. at 17. In Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984), the court found that an ALJ's observations were entitled to great weight "[b]ecause he had the opportunity to observe the demeanor and to determine the credibility of the claimant." However, without explicitly overruling its finding in Shively, the court seemed to reach a contrary conclusion in Lewis v. Bowen, 823 F.2d 813, 816 (4th Cir. 1987), stating "[t]o allow a claimant's appearance at a hearing or medical evaluation to govern a finding on personal habits would be akin to applying a 'sit and squirm' jurisprudence to claimants who allege disability based on pain." See Shively, 739 F.2d at 935 (Hall, J., dissenting); Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981); Tyler v. Weinberger, 409 F. Supp. 776, 789 (E.D. Va. 1976).
Although an ALJ's reliance on observations during a hearing to evaluate a claimant's overall credibility is questionable under Fourth Circuit jurisprudence, SSR 16-3p appears to negate the conflict to the extent that it specifically eliminates assessment of "credibility" from subjective symptom evaluation. SSR 16-3p, 2016 WL 1119029, at *1. It provides that ALJs "must base their findings solely on the evidence in the case record, including any testimony from the individual or other witnesses at a hearing" and prohibits ALJ's "from soliciting additional non-medical evidence outside of the record on their own" except as set forth in the regulations and agency policies. Id. at *10. In light of SSR 16-3p's directives, the ALJ erred to the extent that he deviated from the record and relied on his observations during the hearing to find Plaintiff's subjective allegations were inconsistent with the record.
The ALJ's decision does not reflect appropriate consideration of the entire record in accordance with SSR 16-3p. His error in evaluating the medical opinions of record infected his assessment of Plaintiff's subjective allegations of pain and other symptoms. Although the ALJ noted Plaintiff's reports of improvement following back and Achilles tendon repair surgeries (Tr. at 18), he neglected her subsequent complaints to her physicians of significant pain in those areas in the months and years following the surgeries. See Tr. at 306, 326, 337, 358, 381, 396, 424, 428, 429, 432, 435, 436, 447, 462, 467, 471, 474, and 699. Despite SSR 16-3p's requirement that ALJs consider methods used to alleviate symptoms, the ALJ neglected Plaintiff's claim that she needed to elevate her feet for a significant portion of the day to reduce swelling, as well as Dr. Walker's opinion endorsing the restriction. Tr. at 61-62 and 461. The ALJ also erred to the extent that he relied on Plaintiff's ability to engage in home physical therapy exercises that were intended as a method to reduce her pain as a reason to find her allegations inconsistent with the record.
In light of the foregoing, the undersigned recommends the court find the ALJ did not evaluate Plaintiff's pain and other symptoms in accordance with the relevant ruling and regulations. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. March 21, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).