Opinion
CIVIL ACTION NO. 9:16-0660-RMG-BM
03-09-2017
TERESA SEYMORE, Plaintiff, v. CAROLYN W. CALVIN, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), (D.S.C.).
Plaintiff applied for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on September 14, 2012 (protective filing date), alleging disability as of February 17, 2011 due to congestive heart failure, hypertension, and depression. (R.pp. 23, 32, 160, 280, 286, 362). Plaintiff's claims were denied initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on January 16, 2014. (R.pp. 67-94). The ALJ thereafter denied Plaintiff's claims in a decision issued March 7, 2014. (R.pp. 160-168). However, on November 10, 2014, the Appeals Council remanded the case to the ALJ for further action and a new decision. (R.pp. 174-175). A second hearing was then held on March 25, 2015; (R.pp. 38-64); following which the ALJ thereafter denied Plaintiff's claims in a decision issued June 2, 2015. (R.pp. 23-32). On January 8, 2016, the Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-5).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that she was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff originally alleged that she became disabled as of February 17, 2011. (R.pp. 280, 286). At the hearing before the Administrative Law Judge, however, Plaintiff alleged that her disability onset date was February 17, 2012. (R.pp. 54, 68). In his first decision, the ALJ used the alleged onset date of February 17, 2012 (160, 162, 168), but in the second decision he used the alleged onset date of February 17, 2011,which would appear to be a typographical error. (R.p. 23, 32). The parties do not dispute that Plaintiff's alleged disability onset date is now February 17, 2012. See Plaintiff's Brief, p. 4; Defendant's Brief, pp. 2-3.
Plaintiff then filed this action in this United States District Court, asserting that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further consideration. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Medical History
Plaintiff's medical records show that in August 2010, she was treated at the Good Neighbor Medical Clinic in Beaufort, South Carolina for complaints of knee pain. (R.p. 443). A left knee MRI in September 2010 showed some degeneration of the anterior horn of Plaintiff's lateral meniscus with some vertical signal abnormality which appeared to extend to the inferior and superior joint surfaces which was concerning for a degenerative tear. (R.p. 459).
On June 5, 2012, after experiencing several weeks of chest pain, Plaintiff was hospitalized overnight at Beaufort Memorial Hospital. A chest x-ray showed borderline cardiomegaly (enlarged heart). However, there was no sign of acute pulmonary disease, and an echocardiogram revealed no acute changes and myocardial infarction was ruled out. Plaintiff was transferred to the Medical University of South Carolina (MUSC) for further testing of unstable angina, reports of coronary artery disease, hypertension, tobacco use, and medical non-compliance. (R.pp. 471-472, 479-480, 488-510). Plaintiff was thereafter hospitalized at MUSC from June 6 to 7, 2012. A coronary arteriography indicated non-obstructive coronary artery disease and uncontrolled hypertension, but on physical examination Plaintiff had a regular heart rate and rhythm, no JVD (jugular vein distention), good and even peripheral pulses, no edema in her arms and legs, 5/5 (full) strength, and no focal neurological deficits. The cardiologist characterized Plaintiff's chest pain as noncardiac in nature and diagnosed chest pain likely secondary to costochondritis. Plaintiff's medications were adjusted, daily aspirin and a statin were added, and Plaintiff was encouraged to quit smoking. (R.pp. 490-510).
An inflammation of the junctions where the upper ribs join with the cartilage that hold them to the sternum. Condition causes localized chest pain. http://www.webmd.com/pain-management/costochondritis#1, February 2, 2016.
On September 25, 2012, Dr. David M. Waggoner at Good Neighbor Medical Clinic (where Plaintiff was primarily treated during the relevant time period) evaluated Plaintiff for depression, sleep problems, and pain and swelling in her left knee. Plaintiff also complained of chest pain that was eased by nitroglycerin. Dr. Waggoner ordered a left knee x-ray and referred Plaintiff for an orthopedic consultation. (R.p. 534). On October 2, 2012, x-rays of Plaintiff's left knee showed moderate joint effusion and mild medial joint space loss. (R.p. 470). On December 20, 2012, Dr. Waggoner evaluated Plaintiff for left knee swelling and pain in her left arm and wrist, administered an injection in her left knee, and diagnosed osteoarthritis. (R.p. 533).
On February 2, 2013, Dr. Shaun A. Nguyen performed a consultative examination at the request of the Commissioner. Plaintiff reported that she was diagnosed with hypertension in 2000, congestive heart failure in 2009, and depression in 2004. She complained of pain, shortness of breath on exertion, intermittent lower extremity edema, and sadness at a level of eight out of ten on most days. Plaintiff denied anxiety and problems sleeping, but admitted to having suicidal thoughts, seeing shadows, and seeing snakes crawling up her feet. Plaintiff also reported that she had been diagnosed with a torn left knee ligament in 2009; received a series of injections in her knee over a three year period; complained of constant, aching pain at a level of six out of ten; and indicated she had about thirty minutes of morning stiffness and worsening pain when she stood or walked for very long. Dr. Nguyen noted that Plaintiff was cooperative and appropriate in appearance; was five feet, two inches tall; weighed 194 pounds; had +1 lower extremity edema bilaterally; and could perform toe-walk and heel-walk, but was unable to hop or perform a full squat. Plaintiff's left knee x-rays from October 2012 showed degenerative change with moderate joint effusion. Dr. Nguyen noted that Plaintiff complained of left knee pain when performing knee flexion, pain radiating to her left hip when performing left hip flexion, and pain radiating to her left hip on left leg raise. Dr. Nguyen thought Plaintiff had possible iliotibial band syndrome, and diagnosed Plaintiff with class II obesity with a BMI of 35.5, depression, hypertension, congestive heart failure with bilateral lower extremity edema (+1), left knee pain radiating to her left hip, limited knee flexion bilaterally, limited range of motion with left hip flexion, and positive straight leg raising test both in the supine and the sitting positions. (R.pp. 516-522).
On March 12, 2013, state agency physician Dr. Mary Lang reviewed Plaintiff's medical records and opined that Plaintiff could lift and carry up to twenty pounds occasionally and ten pounds frequently; stand and/or walk for about six hours and sit for about six hours during an eight-hour workday; occasionally push and pull with her left leg; occasionally climb ramps, stairs, ladders, ropes, and scaffolds; frequently stoop; occasionally kneel, crouch, and crawl; and balance on an unlimited basis. Dr. Lang further opined that Plaintiff should avoid concentrated exposure to pulmonary irritants, but that she could tolerate unlimited exposure to other environmental conditions. (R.pp. 112-114).
On March 21, 2013, Plaintiff complained to Dr. Waggoner of left-sided chest pain, left arm and wrist pain, and a painful and swollen left knee. She requested medication for stress and reported she used to take Lexapro. Dr. Waggoner noted that Plaintiff had lower extremity edema and complained that her edema was worse at night. She also reported using nitroglycerin twice a week. Dr. Waggoner prescribed nitroglycerin and Lexapro. (R.p. 532).
Dr. Waggoner completed a Cardiac Medical Source Statement on March 21, 2013. He wrote that he had treated Plaintiff every three months since 2009, noted her diagnoses were congestive heart failure and osteoarthritis; indicated that Plaintiff's prognosis was poor; and listed her symptoms as chest pain, weakness, exertional dyspnea, angina equivalent pain, exercise intolerance, orthopnea, lower extremity peripheral edema, chronic fatigue, and palpitations. He further stated that Plaintiff's left chest pain and symptoms required her to take nitroglycerine twice weekly and that she typically had to rest for one hour after an episode of angina, although her physical symptoms and limitations did not cause emotional difficulties and emotional factors did not contribute to the severity of her symptoms. Dr. Waggoner opined that Plaintiff was incapable of even low stress work, that she would suffer severe pain in a competitive work situation, and she could walk "zero" city blocks without rest or severe pain. He also estimated that Plaintiff could sit about four hours and stand and walk less than two hours in an eight-hour workday; needed to shift positions at will between sitting, standing, and walking; needed to take unscheduled breaks every two hours; and needed to elevate her legs with prolonged sitting. He further opined that she could rarely lift and carry less than ten pounds; could never lift and carry ten pounds; could rarely twist, stoop, or crouch/squat; and could never climb stairs or ladders. Dr. Waggoner estimated that Plaintiff would be 'off task" and her symptoms would likely be severe enough to interfere with the attention and concentration necessary to perform even simple tasks ten percent of the time. He further indicated that her symptoms were likely to produce good days and bad days and that she would likely be absent from work more than four days per month. Dr. Waggoner answered "yes' to the question of whether Plaintiff's impairments (as demonstrated by signs, clinical findings, and laboratory test results) were "reasonably consistent with the symptoms and functional limitations described above in this evaluation." (R.pp. 523-526).
On April 23, 2013, state agency psychologist Dr. Kathleen Broughan reviewed Plaintiff's medical records and opined that Plaintiff did not have a severe mental impairment. (R.pp. 129-130). On April 29, 2013, state agency physician Dr. Jean Smolka reached the same findings as Dr. Lang (that Plaintiff could perform a range of light work), with the additional restriction that Plaintiff should avoid concentrated exposure to hazards. (R.pp. 131-134).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b) (2005).
On May 1, 2013, Plaintiff was treated at the Beaufort Memorial Hospital emergency room for chest pain. An ECG study revealed no changes from a previous June 2012 study, while a chest x-ray revealed cardiomegaly. She was diagnosed with atypical chest pain, prescribed Lortab and Prilosec, and advised to seek physician follow-up within two days. (R.pp. 540-553).
On May 29, 2013, Plaintiff's high blood pressure and depression were evaluated by Dr. Waggoner. He noted that Plaintiff had knee problems with crepitance and indicated that Plaintiff needed a cane. Zoloft was prescribed. (R.p. 606).
On June 6, 2013, Dr. Stephen Peskoe of Good Neighbor Medical Clinic evaluated Plaintiff for depression and increased her Zoloft dosage. (R.p. 605). On September 10, 2013, Plaintiff reported that she had chest pain on and off and that she was out of nitroglycerin. Dr. Peskoe adjusted Plaintiff's medications. (R.p. 602).
On April 20, 2014, Dr. Waggoner diagnosed Plaintiff with high blood pressure, angina, left knee pain, and leg swelling. Dr. Waggoner noted that Plaintiff needed to use a cane when she was out and that she needed a prescription for nitroglycerin. (R.p. 601).
On May 26, 2014, Plaintiff was admitted to Lexington Medical Center for complaints of extremity weakness and left-sided headaches. She was diagnosed with a cerebral infarction (a stroke) and hypertensive disorder and remained in the hospital until May 29, 2014. Plaintiff's condition improved with anti-coagulent therapy and blood pressure medication, and her final diagnoses were unspecified cerebral artery occlusion with cerebral infarction; essential hypertension, malignant; chronic diastolic heart failure; congestive heart failure, unspecified; other chronic pulmonary heart diseases; hemiplegia, unspecified, affecting dominant side; mitral valve disorders; facial weakness; anxiety state, unspecified; depressive disorder, not elsewhere classified; and tobacco use disorder. (R.pp. 554-593).
On June 24, 2014, Dr. Peskoe evaluated Plaintiff and indicated that Plaintiff's paresis had largely resolved, but that Plaintiff was unable to walk a block due to dyspnea on exertion and left leg pain. He found Plaintiff had trace edema. (R.p. 599). On September 3, 2014, Plaintiff reported to Dr. Peskoe that she had intermittent left-sided pain and numbness as well as new left-sided sciatic pain. He referred Plaintiff for an orthopedic evaluation. (R.p. 598).
On September 15, 2014, Plaintiff was treated at Beaufort Memorial Hospital for shoulder pain. Examination indicated she had decrease range of motion, pain, and tenderness in her left shoulder. X-rays showed AC joint osteoarthritis. Plaintiff was diagnosed with tendonitis and prescribed Percocet and Prednisone. (R.pp. 616-625).
On September 16, 2014, an unidentified physician at the Good Neighbor Medical Clinic evaluated Plaintiff for complaints of left leg pain from her left buttock down to her knee when walking. Examination revealed no effusion, and she was diagnosed with internal derangement of the left knee. Plaintiff was advised to return for a cortisone injection if her symptoms persisted. (R. 597).
On October 19, 2014, Dr. Peskoe noted that Plaintiff's hypertension and hypertensive cardiovascular disease were controlled, and he refilled her medications. (R.p. 596). On December 10, 2014, Plaintiff complained to Dr. Peskoe of intermittent left arm pain with weakness, continued left leg weakness, swelling of her left hand when it got chilled, a feeling like her heart was beating too slow, concern over weight gain, and that her left leg gave way. Dr. Peskoe adjusted Plaintiff's medications. (R.pp. 595-596).
Plaintiff was treated at the Beaufort Memorial Hospital for back pain on December 23, 2014. (R.pp. 612-615).
On February 18, 2015, Dr. Peskoe increased Plaintiff's hypertensive medication dosage. On September 11, 2015, Dr. Peskoe reviewed Dr. Waggoner's March 2013 assessment and answered "yes" to a question of whether Plaintiff still suffered from the same conditions, symptoms, and limitations that Dr. Waggoner had described in March 2013. Dr. Peskoe also indicated that Plaintiff had hypertension and noted the additional history of stroke in May 2014. (R.p. 611).
Discussion
Plaintiff was forty-nine years old on her original alleged disability onset date, fifty years old at the time of her amended disability onset date, has an eleventh grade (limited) education, and past relevant work experience as a presser (R.pp. 31, 280, 286, 363). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months. After a review of the evidence and testimony in this case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of hypertensive cardiovascular disease, history of congestive heart failure, obesity, osteoarthritis, and history of a stroke (R.p. 26), she nevertheless retained the residual functional capacity (RFC) to perform a range of light work with restrictions that she could not climb ladders, ropes, or scaffolds; could only occasionally climb ramps and stairs; occasionally operate foot controls with the her left leg; occasionally stoop, kneel, crouch, and crawl; she must avoid working at unprotected heights; and must work in a climate-controlled environment. (R.p. 28). At step four, the ALJ found that Plaintiff could not perform any of her past relevant work with these limitations. (R.p. 31). However, the ALJ obtained testimony from a vocational expert and found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with these limitations, and was therefore not entitled to disability benefits. (R.pp. 31-32).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Plaintiff asserts that in reaching this decision the ALJ erred because he improperly disregarded the opinions of her treating physicians (Dr. Waggoner and Dr. Peskoe), improperly evaluated her RFC, and improperly evaluated her credibility. Specifically with respect to the physician opinions, Plaintiff asserts that the ALJ failed to provide adequate reasons for rejecting Dr. Waggoner's opinions, created a conflict regarding Plaintiff's walking limitation that is not supported by the record, rejected Dr. Waggoner's opinions because Plaintiff's chest pain complaints were found to be non-cardiac in nature which contradicts the ALJ's own findings that Plaintiff had severe cardiac impairments, ignored Dr. Waggoner's extensive osteoarthritic limitations, misstated Plaintiff's hearing testimony to improperly reject Dr. Waggoner's opinion that Plaintiff needed to elevate her legs to alleviate symptoms, and failed to provide adequate reasons for rejecting Dr. Peskoe's opinions. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate the opinions of Plaintiff's treating physicians, thereby requiring a reversal of the decision with remand for further consideration of this evidence.
Both Dr. Waggoner and Dr. Peskoe, who qualify as treating physicians, opined that Plaintiff's impairments rendered her incapable of performing even sedentary, low stress work. A treating physician's opinion is ordinarily entitled to great weight; Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996)[Noting importance of treating physician opinion]; is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. §§ 404.1527 and 416.927. See SSR 96-2p. Under these regulations, a treating source's opinion on the nature and severity of an impairment is entitled to "controlling weight" where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Further, the ALJ is required to provide an explanation in the decision for what weight is given a treating source's opinion and, if rejected, why it was rejected. See 20 C.F.R. § § 404.1527(c)(2) and 416.927(c)(2).
Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (2005).
Here, the ALJ gave "little" weight to the opinions of both Dr. Waggoner and Dr. Peskoe. (R.p. 30). The Commissioner contends that the ALJ reasonably assigned little weight to these treating physician opinions because they were inconsistent with the objective medical evidence and Plaintiff's testimony. The ALJ stated that he gave little weight to Dr. Waggoner's March 2013 medical source statement because:
the opinions contained therein are inconsistent with the objective evidence of record and the claimant's own testimony at the hearing. For example, Dr. Waggoner indicated that the claimant is unable to walk a city block while she testified that she attempts to walk around the block on a daily basis. On consultative examination, she was able to walk with a normal gait unassisted. Moreover, the claimant's chest pain
complaints have been found to be noncardiac in nature. She also never indicated at the hearing that she elevates her legs to alleviate her symptoms.(R.p. 30). As for Dr. Peskoe, the ALJ did not specifically address Dr. Peskoe's opinion other than to generally state "[l]ikewise, little weight is accorded to the opinions of Drs. Waggoner and Peskoe." (Id.).
It is not the role of this court to disturb the ALJ's determination as to the weight to be assigned to a medical source opinion "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam). In this case, however, the reasons given by the ALJ for why he did not accept the treating physician opinions are not supported by the record or by the ALJ's own RFC findings, thereby requiring reversal of the decision. First, although the ALJ stated that he had discounted the treating physician opinions because Plaintiff never indicated at the hearing that she elevated her legs to alleviate her symptoms (R.p. 30), this finding is contradicted by the ALJ's own acknowledgment in his decision that Plaintiff did testify that she had to keep her legs elevated to alleviate swelling. (R.p. 28). Further, review of the hearing transcripts confirms that Plaintiff did testify as to a need to elevate her legs at both hearings. In the first hearing, Plaintiff stated that while working part time as a housekeeper her "leg would swell up" and that she could not do the work because sometimes her leg "would swell up and [she would] have to stop to sit down and put it up." (R.pp. 69-70). At the second hearing, Plaintiff stated that while doing the part-time housekeeping job she would need to take a thirty minute break about every hour, had to sit down because she could not be on her leg too long, and that when her leg started hurting and swelling she had to sit down and "just put it [her leg] up for a while." (R.pp. 48-49). Additionally, Plaintiff testified that when the weather is "really, really bad" her ankles give out, and that she has to sit down and keep her leg up a lot, otherwise it will "swell big to the back of it". (R.p. 53). Plaintiff also testified that she could only sit comfortably for about an hour, but that after that she "usually put [her] leg up because it'll swell - it'll hurt around my knee. It'll hurt, so I try to stop to keep it elevated." (R.p. 74). At the second hearing she also testified that by that time she normally lies down all day. (R.p. 72). Therefore, this reason given by the ALJ for having discounted the treating physician opinions is not supported by the very hearing testimony he cites.
Plaintiff stated she worked part-time as a housekeeper from April to November 2013 (after her alleged disability onset date), earning a total of about $3600. (R.p. 41).
Similarly, with respect to the ALJ's statement that he discounted the treating physician opinions that Plaintiff was unable to walk a city block because Plaintiff testified that she attempted to walk a block on a daily basis and because Dr. Nguyen noted that Plaintiff was able to walk unassisted with a normal gait, this finding is also not supported by the record. Plaintiff did not testify concerning any ability to walk a block at the second hearing, but did testify that she had become out of breath and had to sit down just walking from the parking lot to the hearing. (R.p. 72). Further, while Plaintiff did testify concerning this issue at the earlier January 2014 hearing, her testimony was that:
Sometimes I'll go for a - I try to walk around the block, but it - - I haven't done it in a minute because it takes me a long time, unless somebody goes with me and then I'll walk and kind of stop with them and talk....but I don't go by myself anymore.(R.pp. 88-89). Plaintiff also testified that "[Dr. Waggoner] gave me this cane to walk with......because I've already fallen plenty of times that [her knee] gave out on me. So he's had me walk with the cane." (R.p. 85). It is unclear how this testimony (which appears to be what the ALJ is referring to) contradicts the treating physicians' opinions that Plaintiff could not walk a city block without rest or severe pain. (R.pp. 524, 611).
A review of Dr. Waggoner's medical records confirm that on May 29, 2013 he stated that Plaintiff "needs cane" due to her osteoarthritis. (R.p. 606)
Additionally, although Dr. Nguyen did state that Plaintiff was able to walk unassisted with a normal gait to the examining room, this is not an indication or finding that Plaintiff had the ability to walk a distance as great as a city block, and therefore does not constitute substantial evidence to support the ALJ's decision. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"]. Moreover, Dr. Nguyen examined Plaintiff on only one occasion, in February 2013, which was prior to Plaintiff's hospitalization after she had suffered a stroke, prior to the treating physicians' opinions, and prior to her treating physician's notations in May 2013 that she needed a cane (R.p. 606) and in April 2014 that her legs swell when she is on her feet and that she used a cane (R.p. 601).
The final reason given by the ALJ for discounting the treating physicians' opinions is that Plaintiff's chest pain complaints had been found to be non-cardiac in nature. However, the ALJ does not explain how this finding contradicts the findings of the treating physicians. Even if Plaintiff has been found to suffer from non-cardiac chest pain (which she has been), that would not be a reason to discount the treating physicians' findings. They also found that Plaintiff suffers from chest pain, of which there is clear evidence in the record. (R.pp. 523, 611). The Court is left to wonder why it would make a difference whether the chest pain was cardiac or non-cardiac pain, or even why the two would be mutually exclusive of the other. Further, if the ALJ's complaint is instead with the treating physicians' opinions that Plaintiff suffers from congestive heart failure, the ALJ himself found as part of his decision that Plaintiff had severe cardiac impairments including hypertensive cardiovascular disease, a history of congestive heart failure, and history of a stroke. (R.p. 26). The medical record also shows that Plaintiff was consistently prescribed nitroglycerin for chest pain, and although cardiac catheterization did not show obstructive disease, there were findings of mild disease in the left anterior descending artery and diagonals and mild to moderate disease in the right coronary artery (with fifty percent stenosis). (R.p. 506). In addition, chest x-rays in June 2012 indicated that Plaintiff had borderline cardiomegaly (R.p. 479), while later x-rays in May 2013 diagnosed Plaintiff with cardiomegaly. (R.p. 549). Both treating physicians as well as the consultative physician (Dr. Nguyen) also noted that Plaintiff had peripheral edema, and her treating physicians continued to prescribe her nitroglycerin for chest pain. Moreover, Plaintiff's May 2014 hospitalization final diagnoses included chronic pulmonary heart disease, mitral valve disorders, and chronic diastolic heart failure. (R.p. 554). These findings fail to provide substantial evidence to support the ALJ's decision to discount the treating physician' opinions because Plaintiff suffers from chest pain that is non-cardiac in nature.
An enlarged heart seen on any imaging test. http://www.mayoclinic.org/diseases-conditions/enlarged-heart/home/ovc-20305820. Jan. 21, 2017.
In sum, although the Commissioner argues that Plaintiff is impermissibly asking the Court to reweigh the evidence and reach a different conclusion about the weight to be afforded to the treating physicians opinions, Plaintiff has correctly pointed to demonstrable inconsistencies between the reasons cited by the ALJ for discounting the treating physician opinions and the actual record in this case. Therefore, although the ALJ did generally state that he had considered the opinion evidence in accordance with the requirements of § 404.1527 (R.p. 28), the decision does not reflect a proper evaluation of the treating physician opinions. Indeed, the ALJ never even states that Dr. Waggoner or Dr. Peskoe are treating physicians (or make a finding that they are not), nor does he discuss any of their medical records as a reason for discounting their opinions (only noting their May 2013 and September 2013 opinions). As such, the decision reflects no contemplation of the length of the treatment relationship, the frequency of examination, or the nature and extent of the treatment relationship. See 20 C.F.R. § 404.1527(c)(2)(i), (ii).
Finally, although the Commissioner offers additional arguments as to why she believes that the treating physician opinions are not supported; see Defendant's Brief at 14-17; these arguments are only post hoc rationalization for upholding the decision, since this evidence is not the basis for discounting these opinions stated by the ALJ in his decision. See Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009)["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking."]; see also Ellis v. Astrue, No. 07-3996, 2009 WL 578539, at * 8 (D.S.C. Mar. 5, 2009) [Rejecting post hoc rationale for ALJ's decision]; Nester v. Astrue, No. 08-2045, 2009 WL 349701, at * 2 (E.D. Feb. 12, 2009) [Noting that the Court "may not consider post hoc rationalizations but must evaluate only the reasons and conclusions offered by the ALJ."]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)[Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision].
Therefore, this case should be reversed, with remand for a proper review and evaluation of the treating physician opinions. With respect to the remainder of Plaintiff's claims of error, 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 (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].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge March 9, 2017
Charleston, 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
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).