Opinion
Civil Action No. 6:18-461-RMG-KFM
02-21-2019
Douglas Henry Seay, Jr, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on November 10, 2014, alleging that he became unable to work on February 11, 2014. The application was denied initially and on reconsideration by the Social Security Administration. On July 17, 2015, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff appeared on January 10, 2017, considered the case de novo and, on February 14, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 13-22). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on December 14, 2017 (Tr. 1-3). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
(2) The claimant has not engaged in substantial gainful activity since February 11, 2014, the alleged onset date (20 C.F.R. § 404.1571 et seq).
(3) The claimant has the following severe combination of impairments: avascular necrosis (AVN), status post left total hip arthroplasty, status post L5-S1 lumbar fusion, diabetes, and obesity (20 C.F.R. § 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant had the residual functional capacity to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a).
(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on January 28, 1971, and was 43 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 C.F.R. § 404.1563).
(8) The claimant has a limited education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using 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 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a)).
(11) The claimant was not been under a disability, as defined in the Social Security Act, from February 11, 2014, through the date of this decision (20 C.F.R. § 404.1520(g)).
Sedentary work involves lifting/carrying light items and occasionally lifting/carrying up to ten pounds, as well as standing or walking for two hours in and eight-hour workday and sitting for six hours each in an eight-hour workday.
A "younger person" is defined in the cited regulation as "under age 50." 20 C.F.R. § 404.1563(c). The regulation further provides, "[I]n some circumstances, persons age 45-49 are more limited in their ability to adjust to other work than persons who have not attained age 45. . . ." Id. The inaccurate definition of the plaintiff's age category has no impact on the analysis of the plaintiff's claim.
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 43 years old on his alleged disability onset date (February 11, 2014) and 46 years old on the date of the ALJ's decision (February 14, 2017). He attended school through the ninth grade and has past relevant work as an electrician (Tr. 21, 45, 175-77).
On July 31, 2010, an MRI of the plaintiff's lumbar spine showed L5-S1 right disc osteophytes that caused a moderate deflection and flattening of the exiting right L5 in the neuroforamen (Tr. 290). He was seen regularly by Jeremy J. Ackermann, D.O., at Berkeley Family Practice for diabetes and worsening hip and back pain in 2012 and 2013 (Tr. 667, 670, 454, 282).
On December 5, 2013, an MRI of the plaintiff's lumbar spine showed moderately severe spondylosis with probable left L4 root compression at L4-5. There was spondylolisthesis with potential bilateral L5 root compression at L5-S1 (Tr. 415). On December 12, 2013, he had severe osteoarthrosis of the left hip with cystic degeneration and flattening of the left femoral head (Tr. 305).
On February 11, 2014, the plaintiff underwent a left total hip replacement. On post-operative day one, he was ambulating without pain (Tr. 273-76).
On February 24, 2014, the plaintiff reported decreased mobility, difficulty going to sleep, joint pain, limping, and weakness. His pain was relieved by over the counter medications. The plaintiff's hip surgeon, Brodie McKoy, M.D., advised him to resume his normal activity as tolerated, to follow an exercise program, and continue treatment until his full range of motion ("ROM") and strength returned (Tr. 338-40).
On February 28, 2014, the plaintiff was seen again for diabetes. He was treated by Dr. Ackermann. At that time, his diabetes was well controlled. He had no swelling in his legs, but he was walking with a walker following his hip surgery (Tr. 440-41).
On April 28, 2014, Dr. McKoy recorded that the plaintiff's pain was moderate and stable. The plaintiff complained of ongoing decreased mobility, joint pain, limping, tenderness, and weakness. Dr. McKoy advised him to resume his normal activity as tolerated, to follow an exercise program, and continue treatment until his full ROM and strength returned. He was scheduled for a three month followup (Tr. 341-43).
On June 11, 2014, the plaintiff was frustrated with his left hip pain and with his recovery after total hip replacement. Dr. Ackermann noted that his diabetes continued to be well controlled. He had no leg swelling and was walking with a cane following his hip surgery (Tr. 434-37).
On April 28, 2014, the plaintiff experienced decreased mobility, joint pain, limping, tenderness, weakness, and muscle soreness. Dr. McKoy referred him to a spine specialist (Tr. 341-43). On June 17, 2014, Dr. McKoy indicated that the plaintiff had been under his care since December 13, 2013, and he was continuously disabled from the date of his surgery, February 11, 2014, through August 15, 2014, due to osteoarthritis and avuncular necrosis ("AVN"). Dr. McKoy stated that the plaintiff could return to work on August 15th (Tr. 270).
On July 24, 2014, Richard C. Holgate, M.D., at Southeastern Spine Institute prescribed Celebrex, Norco, Valium, and Demerol. An MRI of the plaintiff 's lumbar spine showed mild to moderate spondylosis at most levels with a shallow protrusion and low to moderate probability of nerve root compression at L5-S1 (Tr. 328, 396, 413).
On July 28, 2014, the plaintiff reported to Dr. McKoy that his symptoms had not improved. Dr. McKoy advised that he continue physical therapy and home exercises (Tr. 345-47).
On August 5, 2014, a lumbar CT scan indicated that the plaintiff had a severe right and mild to moderate left neural foraminal stenosis, secondary to pars interarticularis defects, mild grade one anterolisthesis, and concentric disc bulge with prominent osteophytes. He also had moderately severe left and mild to moderate right foraminal stenosis at L4-5 and bilateral nonobstructing nephrolithesis (Tr. 328).
On August 6, 2014, the plaintiff was treated again for back pain and left groin pain (Tr. 593). On August 13, 2014, he received an L5/S1 lumbar epidural steroid injection (Tr. 409)
On October 1, 2014, Dr. Ackermann cleared the plaintiff for lumbar fusion surgery (Tr. 425). On October 2, 2014, the plaintiff reported weakness and groin pain. He rated his pain as 4/10 and noted aggravation while performing tasks like using stairs, exercising, standing, and walking. Examination showed weakness of the abductor muscles with bursitis. His gait was normal, he had only mild swelling, and his hip alignment was neutral (Tr. 348-50). Also on October 2, 2014, Dr. McKoy wrote that the plaintiff was continuously totally disabled from February 11, 2014, through a date that appears to be March 11, 2016 (Tr. 856).
On October 7, 2014, the plaintiff sought treatment for low back and left leg pain. Examination notes indicate that the plaintiff was not in obvious discomfort, his straight leg raise testing was negative, he had pain on left internal and external rotation, decreased yet symmetrical lower extremity reflexes, an antalgic gait, and full (5/5) strength in his leg muscles. He underwent an L5-S1 fusion (Tr. 359-63, 369-370).
On October 21, 2014, the plaintiff was seen after his lumbar fusion surgery. He continued to have back pain that radiated to his legs. A bone growth stimulator was prescribed. He was told to do no bending at the waist, no twisting, and no lifting greater than ten pounds (Tr. 388-90).
On November 5, 2014, Dr. Ackermann noted that the plaintiff's diabetes was uncontrolled (Tr. 421-23).
On November 18, 2014, six weeks following surgery, it was noted that the plaintiff had done "fairly well" with resolution of his lower extremity symptoms and decreased back pain. He was started on physical therapy and an exercise plan (Tr. 388).
On November 19, 2014, he was still recovering from lumbar surgery. Lyrica helped his neuropathic pain. The plaintiff was 5'10" tall and weighed 315 pounds, with a body mass index ("BMI") of 45.25 (Tr. 419).
On December 8, 2014, the plaintiff stated that his left hip pain worsened after his spinal fusion surgery (Tr. 549).
On January 20, 2015, the plaintiff still had low back pain and occasional radiation to his buttocks. He continued to attend physical therapy. He required oxycodone once a week, which was confirmed by urinalysis. He took anti-inflammatories as needed for back pain. At that time, three months after fusion surgery, he was overall stable, and he denied paralysis or weakness. Imaging of his lumbar spine showed good positioning of his instrumentation (Tr. 587-88).
On January 22, 2015, as part of the initial benefits determination, State agency physician Isabella McCall, M.D., reviewed the plaintiff's health records and opined that he could occasionally lift and/or carry up to 20 pounds and frequently lift and/or carry up to ten pounds. Dr. McCall found that the plaintiff could stand and/or walk for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and was limited to frequent pushing/pulling with his left lower leg. She opined that he could occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl, frequently balance, and never climb ladders/ropes/scaffolding. The plaintiff should avoid concentrated exposure to hazards, such as machinery and heights. He had no manipulative, visual, or communicative limitations. Dr. McCall noted that the plaintiff was able to perform most personal tasks independently and that his own description of his limitations was not fully supported by the totality of the evidence (Tr. 50-52).
On February 17, 2015, the plaintiff's pain had gotten progressively worse. It was worse with sitting, walking, bending, lifting, and twisting. He was constantly having to change positions or put his feet up to alleviate the symptoms. The pain affected his sleep, physical activity, emotional lability, and concentration. Physical therapy and medications did not help relieve his pain. Treatment notes indicate that he was not in acute distress, and he exhibited 4/5 strength in his quadriceps and hamstrings. He had pain and spasticity in his lumbosacral region, and his sensation was slightly decreased in his left thigh and buttock compared to the right. His cranial nerves were intact. The plaintiff was scheduled for pain management as well as vocational rehabilitation to see if there was another job he could perform instead of going on disability, with which he was agreeable. A medial branch block on the left at L3-4 and L5-S1 was scheduled, and he was prescribed anti-inflammatories (Tr. 712-13, 763-64).
On February 23, 2015, Dr. McKoy completed a checkbox form indicating that the plaintiff was permanently disabled due to hip and back pain. Dr. McCoy did not indicate the plaintiff's specific limitations or provide any supporting evidence (Tr. 733).
On March 9, 2015, the plaintiff had persistent pain in his prosthetic hip joint with range of motion. He had pain in the middle of his groin and in his lower back. Dr. McKoy noted that the hip replacement arthroplasty was in an acceptable position and alignment with no evidence of loosening or loss of fixation (Tr. 550-52).
On April 21, 2015, the plaintiff continued to report low back pain, but denied any worsening symptoms, including weakness or paralysis. Imaging showed that his instrumentation was in good position, and comparison with previous x-rays showed that he was stable. He was ambulatory with a nonantalgic gait, intact strength, and a negative straight leg raise test. Overall, the plaintiff was doing well, and his medical provider was happy with his progress. He was being followed by pain management. He was unable to get his medial branch blocks due to precertification issues. He was treated with Relafen, Zanaflex, and magnesium (Tr. 759-61).
On April 21, 2015, as part of the benefits reconsideration determination, State agency physician Sannagai Brown, M.D., independently reviewed the plaintiff's records and made substantially identical findings to those of Dr. McCall as noted above. Dr. Brown also found the plaintiff's allegations only partially credible when compared to the medical evidence (Tr. 62-65).
On June 5, 2015, the plaintiff was still having some residual back pain after his lumbar spine surgery. He was also interested in a referral to a counselor to help him deal with his anger and anxiety. His diabetes was poorly controlled (Tr. 807). On June 15, 2015, the plaintiff reported left hip and thigh pain and weakness and right shoulder pain. He had a positive impingement test of the right shoulder (Tr. 553-56).
On June 25, 2015, the plaintiff had persistent lower back pain. He was unable to pay for the medial branch blocks. He had limited strength of the quadriceps and hamstrings, and he had decreased sensation of the left thigh and buttock. W. Blane Richardson, M.D., noted that the plaintiff's pain management regimen gave him about 50% relief. He exhibited 5/5 strength in his right leg and 4/5 strength in his left leg. He had slightly decreased sensation, but his cranial nerves were intact (Tr. 765).
On July 1, 2015, the plaintiff still had residual back pain after his surgery but denied any new symptoms (Tr. 805).
On August 12, 2015, the plaintiff was seen for numbness in his extremities. He had bilateral hand numbness and bilateral arm tingling. His symptoms woke him up at night. He also had burning in both feet. On examination, he had a normal gait, normal muscle tone, no spasticity, full (5/5) strength in all upper and lower extremity muscle groups, intact sensation, and normal coordination (Tr. 813-14).
On August 17, 2015, David Stickler, M.D., diagnosed the plaintiff with bilateral carpal tunnel syndrome (Tr. 822, 833). On August 27, 2015, he underwent a carpal tunnel release surgery on the right wrist, and on September 15, 2015, he had a carpal tunnel release surgery on the left wrist (Tr. 835). Two weeks after his right carpal tunnel release, he was doing well without significant pain, numbness, or tingling (Tr. 844).
On June 16, 2016, Dr. Ackermann opined that the plaintiff could stand and walk for up to two hours at a time and three to four hours total in an eight-hour workday. The plaintiff could sit for up to two hours at a time and for six to eight hours total in an eight- hour workday. He would need to intermittently get up to move around to relieve pressure on his back and left leg. He could frequently lift 15 pounds and occasionally lift 20 pounds. Dr. Ackermann further opined that the plaintiff could use his hands for repetitive grasping and fine manipulation, but he could not push or pull. He could not bend, squat, kneel, or climb, but he could frequently reach. Dr. Ackermann noted that the plaintiff must be released to work by his surgeon and stated that the plaintiff did not require an assistive device, such as a cane or walker, to ambulate (Tr. 854).
On January 6, 2017, Dr. McKoy wrote a summary of his treatment of the plaintiff's left hip, noting that he continued to struggle with back and hip issues. Dr. McKoy found the plaintiff was at maximum medical improvement and asked that strong consideration be given to his application for total disability due to his ongoing pain and weakness that impacted his ability to gain or keep employment (Tr. 858). On January 9, 2017, Dr. McKoy opined that the plaintiff could stand, walk, and sit zero to two hours total in an eight hour workday. He could occasionally lift ten pounds. He could use his hands for repetitive grasping and fine manipulation, but he could not push or pull. He could not bend, squat, kneel, climb, or reach. Dr. McKoy stated that the plaintiff required a cane for ambulation (Tr. 859).
On January 10, 2017, the plaintiff testified at the administrative hearing that he was 5'11" and weighed 282 pounds. He had lost weight since he quit working. He previously weighed 345 pounds (Tr. 31-34). He testified that he had a lot of pain throughout his left leg, hip, and groin area. He could stand for 20 or 30 minutes. He had problems with his back and legs. He could walk about half a mile. His hip pain interfered with his sleep because he could not sleep on his left side. He slept about five or six hours a night. He had problems walking up the steps. Sometimes he thought his foot was in front of him, but it was not and he stumbled. He reclined in a chair and put his feet on a stool to help ease the pain. He also put a heating pad on his left side and back. He used the heating pad four or five times a day. He had radiating pain in his lower back due to the chair he was sitting in at the hearing. The pain radiated into his left hip and leg. The plaintiff had numbness and tingling that went into his left leg throughout the day. He was unable to bend. If he tried to bend over, he would get a catch in his back, and he could not straighten up for a few minutes. He could not squat or kneel. If he tried, he felt pain in his left leg, and it was hard to get back up. Heat and reclining with his feet up helped his back pain. He spent five to six hours a day with his feet up (Tr. 34-37).
The plaintiff further testified that he was diagnosed with bilateral carpal tunnel symptoms and had bilateral surgeries, but he still had some numbness. When he tried to use his hands, they cramped up, and he had to straighten them out to alleviate the cramps. The surgeries helped with the pain in his arms. He did not think he could lift more than about ten pounds. He could use his hands for 20 to 30 minutes before they started to cramp. He exercised his hands a bit by stretching them four or five times a day. He had difficulty picking up small items. He felt his fingers were not working correctly since his surgery. He had a hard time holding a pencil or reaching to grab a pen or a needle (Tr. 37-38).
The plaintiff was diagnosed with diabetes. His legs swelled. He had vision problems. He was taking Metformin, Glipizide, Lyrica, and Lipriserol, and he took Aleve for pain. Some of his medications made him sick and drowsy. He felt he could not work due to issues with his leg, back, and hands and his diabetes. He could not stand for a long period of time (Tr. 39-40).
The plaintiff testified that he did not go anywhere or do anything. He spent time trying to get rid of his pain. Aleve only soothed his pain; it did not take it away. He could not go anywhere or do anything because he could not walk a long distance. His daughters did the cleaning and the cooking. He could warm up food, but he did not cook, and his daughters paid the bills (Tr. 40-42).
ANALYSIS
The plaintiff argues that the ALJ erred in failing to properly (1) assess medical opinion evidence; (2) explain the residual functional capacity ("RFC") assessment; and (3) consider his subjective complaints (doc. 23 at 12-26).
Medical Opinions
The plaintiff first argues that the ALJ erred in his assessment of the opinions of treating physicians Drs. Ackermann and McKoy (doc. 23 at 12-20). The regulations require that all medical opinions in a case be considered. 20 C.F.R. § 404.1527(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. § 404.1527(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. § 404.1527(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. § 404.1527. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. § 404.1520c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
On June 16, 2016, family practitioner Dr. Ackermann opined that the plaintiff could stand and walk for up to two hours at a time and three to four hours total in an eight-hour workday; could sit for up to two hours at a time and for six to eight hours total in an eight-hour workday; would need to intermittently get up to move around to relieve pressure on his back and left leg; could frequently lift 15 pounds and occasionally lift 20 pounds; could use his hands for repetitive grasping and fine manipulation, but could not push or pull; could not bend, squat, kneel, or climb, but could frequently reach; and did not require an assistive device to ambulate (Tr. 854).
The ALJ gave "partial weight" to Dr. Ackermann's opinion, finding that the opinion was "not fully supported by objective adverse physical findings" (Tr. 20). It appears that the ALJ accorded weight to Dr. Ackermann's opinion regarding the plaintiff's standing, walking, and sitting limitations, which are consistent with the RFC assessment. However, the plaintiff argues that the ALJ erred in failing to explain why he disagreed with Dr. Ackermann's opinion that the plaintiff would need to intermittently get up to move around to relieve pressure on his back and left leg (doc. 23 at 18-19). The undersigned agrees as the ALJ did not mention this restriction in his analysis of Dr. Ackermann's opinion (see Tr. 20).
The Commissioner acknowledges that the ALJ did not address this limitation, but argues that the ALJ did give a reason for not adopting Dr. Ackermann's opinion that the plaintiff needed a sit-stand option (doc. 25 at 14). Specifically, the Commissioner notes that the ALJ stated the following in his analysis of Dr. Ackermann's opinion: "Of note is that no treating orthopedist placed restrictions on the claimant other than during his surgical recovery period" (Tr. 20). However, to the extent this statement is a reason for rejecting Dr. Ackermann's opinion as to the plaintiff's need to intermittently move around, the ALJ's statement is incorrect. In January 2017, orthopedic surgeon Dr. McKoy provided an opinion as to the plaintiff's specific physical capacities and a statement that the plaintiff's back and hip issues continued at the plaintiff's last appointment in June 2015, well past the surgical recovery period for his hip replacement in February 2014 and lumbar fusion in October 2014 (Tr. 858, 859). The ALJ did not explain why he did not consider Dr. McKoy's restrictions to be a treating orthopedist's opinion. While Dr. McKoy did not specifically opine that the plaintiff needed a sit-stand option, his opinion as to the plaintiff's sitting, standing, and walking capacities was much more restrictive than the limitations provided by Dr. Ackermann (see Tr. 859). Moreover, both Dr. McKoy and Dr. Ackermann opined that the plaintiff could never bend, squat, kneel, or climb (Tr. 854, 859). In rejecting these limitations, the ALJ stated only that "the postural limitations are not supported" (Tr. 20). Notably, both State agency physicians opined that the plaintiff could perform these same postural movements only "occasionally" (Tr. 50-52, 62-65). In finding that the plaintiff could perform the full range of sedentary work, the ALJ also rejected the postural limitations provided by the State agency physicians, finding, without further discussion, that they were unsupported by the objective medical evidence of record (Tr. 20).
In the RFC assessment, the ALJ failed to sufficiently explain his reasons for rejecting Dr. Ackermann's opinion as to the plaintiff's postural limitations and need to intermittently get up and move around. "The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." SSR 96-8p, 1996 WL 374184, at *7. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id. Accordingly, the undersigned recommends that this case be remanded for further consideration of Dr. Ackermann's opinion.
Remaining Allegations of Error
As noted above, the plaintiff also argues that the ALJ erred in the RFC assessment by: failing to properly consider the opinions of orthopedic surgeon Dr. McKoy (doc. 23 at 14-17; see Tr. 856, 858, 859); failing to account for his continued lumbar spine pain and total hip replacement (doc. 23 at 20-23); and failing to properly consider his subjective complaints (id. at 23-26). Because the court recommends that this matter be remanded to the ALJ for further consideration of Dr. Ackermann's opinion, the plaintiff's remaining allegations of error will not be further addressed as the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-764 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). Upon remand, the ALJ should be instructed to consider and address these issues.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge February 21, 2019
Greenville, South Carolina
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
300 East Washington Street
Greenville, South Carolina 29601
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).