Opinion
C. A. 9:21-cv-03922-RMG-MHC
01-10-2023
Clarence R. Singleton, Plaintiff, v. Kilolo Kijakazi,[1] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Chirpy United States Magistrate Judge
Plaintiff Clarence R. Singleton (Singleton) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for Disability Insurance Benefits (DIB) under the Social Security Act (Act). 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.). For the reasons that follow, the undersigned recommends that the ALJ's decision be remanded for further consideration.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 4.
On June 24, 2019, Singleton filed his application for DIB, with his alleged onset date of disability beginning November 28, 2018. R.pp. 12, 154. Singleton alleged his disability was caused by removed thyroids, limited range of lifting, chest pain, sleep issues, pain in chest when laying on his side, stitches in his chest, and high blood pressure. R.pp. 154-155, 200. Singleton's application was denied initially and on reconsideration. R.pp. 89-92, 94-98. Singleton timely requested an administrative hearing. R.pp. 99-100.
On December 30, 2020, a telephone hearing was held before an ALJ, where Singleton appeared without counsel. R.pp. 44-48. The ALJ granted a postponement of the hearing to allow Singleton to retain an attorney. R.pp. 47-48. The rescheduled hearing was held on April 1, 2021, at which Singleton, who was then represented by counsel, and a vocational expert testified. R.pp. 49-69. By prehearing brief, Singleton amended his alleged onset date to August 28, 2020 (at age 50). R.p. 246.
On April 23, 2021, the ALJ issued an unfavorable decision, concluding that Singleton was not disabled because he could perform a range of light work in the national economy. R.pp. 9-25. Singleton requested that the Appeals Council review the ALJ's unfavorable decision, but the Appeals Council denied review, making the ALJ's decision final. R.pp. 1-6. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Singleton was disabled from the amended alleged onset date of August 28, 2020. R.pp. 12-21. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023.
2. The claimant has not engaged in substantial gainful activity since August 28, 2020, the amended alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairment: chest wall pain status post sternotomy. (20 CFR 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 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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can occasionally push and pull, can never climb ladders ropes or scaffolds, can never crawl, and can occasionally reach overhead.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on August 28, 1970 and was 50 years old, which is defined as an individual closely approaching advanced age, on the amended alleged disability onset date, applying the age category not mechanically. (20 CFR 404.1563).
8. The claimant has at least a high school education (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. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 28, 2020, through the date of this decision (20 CFR 404.1520(g)).R.pp. 14-21.
IV. DISCUSSION
Singleton presents three arguments in support of remand. First, Singleton argues that the ALJ improperly evaluated Singleton's subjective complaints of chronic pain and drowsiness under SSR 16-3p, resulting in an erroneous RFC. ECF No. 14 at 14-20. Second, Singleton argues the ALJ improperly evaluated medical opinion evidence. ECF No. 14 at 22-26. Third, Singleton maintains remand is warranted because an inaudible response was given by the vocational expert in the hearing transcript on a key issue involving loss of concentration and attention. ECF No. 14 at 26-28. The undersigned agrees remand is proper.
A. Medical opinion evidence
Singleton argues the ALJ improperly evaluated medical opinion evidence. ECF No. 14 at 22-26. Effective March 27, 2017, numerous social security regulations and social security rulings (SSRs) were amended or superseded, making the new regulations applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017), corrected by 82 Fed.Reg. 15132-01, 2017 WL 1105368 (Mar. 27, 2017). Because Singleton's claim for benefits was filed after March 27, 2017, the ALJ was required to evaluate the application under 20 C.F.R. §§ 404.1520c and 416.920c.
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Under the new regulations, the ALJ is not to defer to or give any specific weight to medical opinions based on their source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, ALJs are instructed to consider and evaluate the persuasiveness of the opinion evidence by considering the following factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Supportability and consistency are the most important factors to consider, and an ALJ must explain how these factors are considered in the determination or decision. See 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ may, but is not required to, explain how the other factors are considered. 20 C.F.R. §§ 404.1520c(b)(2), (c), 416.920c(b)(2), (c).
This effectively does away with the so called “Treating Physician Rule” under the provisions of 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), whereby an ALJ was directed to give controlling weight to the opinion of a treating physician if it was well supported by medically-acceptable clinical and laboratory diagnostic techniques and was not inconsistent with the other substantial evidence of record. In addition, 20 C.F.R. §§ 404.1527(c)(5) and 416.927(c)(5) provided that ALJ's should “generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a medical source who is not a specialist.”
This represents another significant departure from the requirements of 20 C.F.R. §§ 404.1527(c) and 416.927(c), whereby, if the ALJ declined to accord controlling weight to the treating physician's opinion, he was to weigh the medical opinions of record based on all of the following factors: (1) examining relationship; (2) treating relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors that tended to support or contradict the opinion.
The supportability factor looks inward-directing an ALJ to examine: (1) the extent to which the objective medical evidence presented by the medical source supports that medical source's opinion; and (2) whether the medical source supports the opinion with explanation.7
Conversely, the consistency factor looks outward-directing an ALJ to evaluate a medical source's opinion in comparison to other evidence in the record. Put differently, the ALJ's analysis considers whether the medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
As for the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In other words, “consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(1).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas v. Comm 'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quotingMascio, 780 F.3d at 636); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include a narrative discussion describing how the or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). “Supportability” denotes “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5853, 2017 WL 168819 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe, 826 F.3d at 189 (citation omitted).
Singleton maintains that the ALJ's persuasiveness evaluation of Dr. Douglas Gleaton- Singleton's treating physician-was not supported by substantial evidence because the ALJ failed to evaluate the relevant factors under the new regulations. The Court agrees and further finds error with the ALJ's persuasiveness evaluation of the state agency medical consultants.
1. Dr. Gleaton's medical opinion
Singleton suffered complications during a surgical procedure under general anesthesia to remove his left thyroid gland. R.pp. 390-91. Specifically, the record shows that during a thyroidectomy on November 27, 2018, a surgical complication resulted in a bleeding blood vessel and ultimately required an emergent full median sternotomy to stop the critical bleeding. R.pp. 348, 390-91. Singleton's severe impairment, which the ALJ noted as “chest wall pain status post sternotomy,” stems from this surgery. See R.p. 14.
As noted above, Singleton alleged in his application that he became disabled on November 28, 2018, the day after his surgery, but at the hearing level amended his alleged onset date to August 28, 2020, when he attained age 50. R.p. 12.
Singleton was regularly treated by Dr. Gleaton from December 2018, the month after the surgery, through February 2021, two months prior to the rescheduled hearing before the ALJ. R.pp. 438-469, 522-570. On January 12, 2021, Dr. Gleaton completed a capacity questionnaire as part of a long-term disability application process. R.p. 491. Dr. Gleaton did not complete the first part of the questionnaire, which requested that he list any medically necessary restrictions and/or limitations that Singleton cannot perform. R.p. 491. Instead, Dr. Gleaton wrote that Singleton's restrictions or limitations would last his lifetime, as “it has been over [one] year with limited improvement.” R.p. 491. In the Physician's Certification section, Dr. Gleaton checked off that his opinion was based on both Singleton's self-reported severity of symptoms and objective findings. R.p. 491. He further checked off that a vocational rehabilitation program would be beneficial in order for Singleton to return to work. R.p. 491.
On March 26, 2021, Dr. Gleaton completed a second treating source statement. R.pp. 57175. On this statement form, Dr. Gleaton indicated that Singleton has been diagnosed with chronic chest wall pain status post sternotomy; essential hypertension; obstructive sleep apnea; gout, unspecified; and obesity. R.p. 572. Dr. Gleaton checked “yes” in answering whether “the claimant's statements concerning his symptoms and functional limitations are reasonably consistent with the objective medical evidence.” R.p. 572. Dr. Gleaton listed “emergent median sternotomy” as the objective evidence supporting these complaints. R.p. 572. Dr. Gleaton checked “no” in answering whether obesity complicated Singleton's ability to perform work-related activities. R.p. 572.
Dr. Gleaton opined that Singleton would be able to stand/walk less than two hours in an eight-hour workday, occasionally lift or carry ten pounds, and could perform no frequent lifting and/or carrying R.p. 573. Dr. Gleaton indicated Singleton would have significant limitation of 10% to 20% of a workday or workweek in his ability to concentrate and attend to work tasks because of “pain and other discomfort,” “fatigue,” and “side effects of medication” such as Cyclobenzaprine and Tramadol. R.p. 574. Dr. Gleaton concluded that Singleton could not sustain any work above the sedentary exertional level and that the impairments were permanent and not expected to improve. R.p. 575.
In evaluating the persuasiveness of Dr. Gleaton's opinions, the ALJ found:
The claimant's primary care physician, Dr. Douglas Gleaton, completed a capacity questionnaire as part of the claimant's long-term disability application process on January 12, 2021. (Exhibit 5F). The first section of this questionnaire asks the provider to list any medically necessary restrictions and/or limitations that the claimant cannot perform. Dr. Gleaton did not complete this section but stated that the claimant's restrictions or limitations would last his lifetime, as the claimant has had limited improvement despite the length of time since his surgery. Dr. Gleaton stated that his opinion is based on the claimant's self-reported severity of symptoms and objective findings. He noted that a vocational rehabilitation program would be beneficial in order for the claimant to return to work. Dr. Gleaton did not include the claimant's diagnoses or functional abilities in this questionnaire, which is extremely vague. To the extent that he suggests that the claimant would be unable to work, a determination of disability is an issue reserved to the Commissioner. For the above reasons, this assessment is found unpersuasive.
Dr. Gleaton completed a treating source statement regarding the claimant in March 2021. (Exhibit 8F). Dr. Gleaton indicated that the claimant has been diagnosed with chronic chest wall pain status post sternotomy, essential hypertension, obstructive sleep apnea, gout, unspecified, and obesity. He noted the claimant's complaint that chest wall pain significantly limits his ability to lift, carry, and reach with his upper extremities. Dr. Gleaton's note that the claimant has developed periodic lower extremity swelling with pain and numbness in his legs, and fatigue that has limited his ability to perform prolonged standing/walking is not reflected in recent treatment notes. Also unsupported by treatment notes is Dr. Gleaton statement that chronic pain and medication side effects interfere with the claimant's ability to sustain concentration. Dr. Gleaton stated that the claimant's statements concerning his symptoms and functional limitations are reasonably consistent with the objective medical evidence, based on his emergent sternotomy.
Functionally, Dr. Gleaton indicated that the claimant would be able to stand/walk less than two hours in an eight-hour workday, and occasionally lift or carry 10 pounds, and can perform no frequent lifting and/or carrying. Dr. Gleaton stated that due to pain or other discomfort, fatigue, and medication side effects, the claimant will have significant limitation in his ability to concentrate, remain alert, think clearly, or otherwise attend to work tasks to completion during an eight-hour workday. Dr. Gleaton's treatment records do not include statements from the claimant regarding significant adverse medication side effects. He found additionally that the claimant would have significant limitation of his concentration and attention to tasks 10 to 20% of every workday or workweek. Dr. Gleaton concluded that the claimant would be unable to sustain work above the sedentary exertional level due to a combination of impairments and chronic pain, and that, regarding his ability to perform work at above the sedentary exertional level, the claimant was expected to have no significant improvement. This assessment is unpersuasive as it is not supported by the minimal objective findings in the record
regarding chest pain. Additionally, while Dr. Gleaton mentions the claimant's hypertension, sleep apnea, gout, and obesity, there is no evidence in the record that these impairments are severe.R.p. 19.
As noted above, ALJ's are required to articulate whether a medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
Here, the ALJ found neither of Dr. Gleaton's opinions persuasive. As to the January 12, 2021, opinion, where Dr. Gleaton did not fully complete nor list any medically necessary restrictions and/or limitations that Singleton could not perform, the ALJ found it to be “extremely vague” because Dr. Gleaton did not include any diagnoses or functional abilities in this questionnaire. R.p. 19. Similarly, the ALJ was not persuaded by Dr. Gleaton's March 26, 2021, treating source statement, finding it unpersuasive primarily because (1) Dr. Gleaton's treatment records did not include statements from Singleton regarding significant adverse medication side effects and (2) it was not supported by the minimal objective findings in the record regarding chest pain.
Upon review, the ALJ appeared to find Dr. Gleaton's opinions unpersuasive solely because they were unsupported by his own treatment records and lacked explanation. Notably absent from the ALJ's discussion is any consideration of the consistency factor, which the new regulations require. This was legal error. Moreover, consideration of other evidence from other medical sources appears to undercut the two primary reasons the ALJ found Dr. Gleaton's opinions unpersuasive.
As to the adverse medication side effects, the ALJ appeared to ignore treatment records from Dr. Elizabeth Kline's office in March, April, and May 2019, which noted that Singleton had to take Gabapentin at night because of somnolence and that he took half of a Narco tablet only occasionally because he did not like the way it made him feel. R.pp. 472, 477, 481. Negative side effects were also noted by Singleton's cardiac surgeon, Dr. John Spratt, who also noted that Gabapentin caused somnolence. R.p. 264. This evidence goes the consistency factor and appears to have been neglected as a result of the ALJ focusing solely on Dr. Gleaton's treatment records.
Dr. Kline was the thoracic surgeon who was brought in for the emergency sternotomy. R.p. 390. Her physician's assistant, Alison Sherrod, noted the medication side effects.
As to Singleton's pain, the ALJ's persuasiveness evaluation ignored physical therapy records showing that Singleton experienced a pain level of eight on a ten-point scale despite taking medication. R.pp. 586, 589, 595, 600. Indeed, in both the initial and discharge evaluations from Singleton's physical therapy, objective clinical observations of pain and functional loss were observed and recorded. R.pp. 576-81, 643-47. After six weeks and seventeen sessions with periods of slow progress and some regress with significant pain during and after therapy sessions, Singleton was discharged on the advice of his physician. R.pp. 576-81. On discharge, the physical therapist noted that “[f]rom the initiation of therapy to discharge the patient's status is unchanged” and concluded that Mr. Singleton exhibited only “fair” prognosis. R.p. 577. Additionally, records from Carolina Pain Physicians repeatedly noted Singleton's pain level was eight on a ten-point scale despite taking medication. R.pp. 494, 498, 502. All this evidence also goes the consistency factor, and it was not discussed in relation to Dr. Gleaton's opinions. See R.p. 19.
For example, in the initial evaluation, palpation of the breast tissue elicited pain with wincing; palpation of the pectoral muscles and surgical incision elicited wincing and withdrawal; and palpation of the intercostal muscles and rib cartilages was not allowed. R.pp. 644-45. Based on objective clinical examination during the evaluation, the physical therapist assessed decreased shoulder and neck range of motion, decreased upper extremity strength, scar tissue adhesion, and moderate to severe muscle guarding. R.p. 645. Functional limitations were assessed as including inability to lift or reach overhead, difficulty breathing and coughing, and minimal assistance for all activities of daily living and transfers with a functional scale score of 38/100. R.p. 645. Impairments identified by the physical therapist included activities of daily living, functional activities, joint integrity and mobility, motor functioning, muscle performance, pain, posture, range of motion, stiffness, and strength. R.p. 645.
The Court notes that although the ALJ briefly summarized some of this evidence earlier in his decision (see R.pp. 17-18), there is no meaningful discussion of this evidence in connection with the ALJ's persuasiveness evaluation of Dr. Gleaton's opinions. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (noting an ALJ must “build an accurate and logical bridge” from the cited evidence to the ALJ's ultimate conclusion (quotingMonroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016))). That is, the ALJ did not connect this evidence to an articulated consideration of the consistency factor while evaluating Dr. Gleaton's opinions.
Consequently, the ALJ did not appear to consider the consistency factor at all. The ALJ did not discuss “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). This was clearly error. Indeed, consideration of other evidence from other medical sources appears to undercut the ALJ's stated reasons for finding Dr. Gleaton's opinions unpersuasive. ALJs should strive to be explicit in their consideration of the supportability and consistency factors so a reviewing court is not left to guess at whether those factors were actually considered. See 20 C.F.R. § 404.1520c(b)(2) (“[W]e will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.” (emphasis added)); see also Patterson, 846 F.3d at 663 (noting the “all too common” problem with decision makers evaluating claims for social security disability benefits in failing to show their work).
With regard to the supportability factor, the undersigned notes the ALJ appeared to ignore the fact that Singleton complained of chest wall pain or tenderness at nearly every appointment with Dr. Gleaton. See R.pp. 443, 445, 447, 457, 527, 531, 540, 549. Indeed, Dr. Gleaton even noted Singleton's pain would likely adversely affect his ability to return to work. See R.p. 450 (“Given the time course of the pain it is unlikely that [Singleton] will be able to return to his previous job which requires a lot of pulling latching which all involve significant strength and constant exertion of the chest wall. Despite work hardening patient continues to have pain.”). The ALJ's failure to acknowledge this evidence while considering the supportability factor strikes the undersigned as impermissible cherry picking. See Lewis, 858 F.3d at 869 (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010))); Angelena S. v. Kijakazi, No. CV 1:22-1022-SVH, 2022 WL 17974702, at *15 (D.S.C. Dec. 28, 2022) (“The ALJ is not allowed to cherry-pick the record, referencing only the evidence that supports his conclusion as to the persuasiveness of the medical opinion and ignoring evidence to the contrary.”); Robinson v. Saul, No. CV 0:20-1860-RMG-PJG, 2021 WL 2300809, at *4-5 (D.S.C. May 25, 2021) (remanding case where the ALJ ignored treatment records supporting the medical provider's opinion), report and recommendation adopted, No. CV 0:20-1860-RMG, 2021 WL 2291834 (D.S.C. June 4, 2021). On remand, the ALJ should also take such evidence into consideration.
Accordingly, because the ALJ did not adhere to the articulated requirements under the new regulations, remand is warranted. See Brown, 873 F.3d at 267 (noting, to warrant remand, a claimant must either show the ALJ has incorrectly applied a legal standard or show the ALJ's factual findings are not supported by substantial evidence). On remand, the ALJ should provide a narrative discussion that thoroughly explains his persuasiveness evaluation and explicitly addresses the supportability and consistency factors.
Singleton also argues that the ALJ committed reversible error by failing to make findings as to the “specialization” and “relationship with the claimant” factors. ECF No. 14 at 24-26. Singleton is mistaken. An ALJ may explain his consideration of the other factors, but he is only required to do so when contrary medical opinions are equally persuasive in terms of both supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). In that situation, the ALJ must then articulate his consideration of the remaining factors and how they influence the persuasiveness of the medical opinion. Id. Here, the ALJ did not consider multiple opinions equally well-supported and consistent with the record; thus, the regulations did not require articulated consideration of the other factors with regard to Dr. Gleaton. See, e.g., Christopher S. v. Kijakazi, No. CV 1:21-1484-SVH, 2022 WL620842, at *17 (D.S.C. Mar. 2, 2022) (“Because the ALJ did not consider the opinions equally well-supported and consistent with the record, he was not required to explain how he considered the three additional factors in assessing the persuasiveness of those opinions.” (citing 20 C.F.R. § 404.1520c(b), (c)). Indeed, it is unclear how § 404.1520c(b)(3)'s articulation requirement could get triggered where, as here, the ALJ did not consider the consistency factor at all.
The new regulations now define “findings . . . about a medical issue made by Federal and State agency medical and psychological consultants at a prior level of review” as “prior administrative medical finding[s],” instead of “medical opinions.” 20 C.F.R. § 404.1513(a)(5). This is because Federal and State agency medical and psychological consultants are “highly qualified and experts in Social Security disability evaluation,” who often make “administrative findings about the medical issues” on behalf the Commissioner (including, for example, the claimant's residual functional capacity) at the initial and reconsideration levels of administrative review. 20 C.F.R. § 404.1513a(a)(1), (b)(1). Regardless, as ALJs must consider this evidence in the same manner as medical opinions, see 20 C.F.R. § 404.1520c, the undersigned will refer to the prior administrative findings as “opinions” in this decision.
Singleton points out that the ALJ did not evaluate the state agency opinions at all. ECF No. 14 at 23 n.18; ECF No. 20 at 8-9. This was legal error.
On August 23, 2019, a state agency medical consultant reviewed Singleton's file at the initial level. R.pp. 70-76. The medical consultant found that Singleton's medically determinable impairments could reasonably be expected to produce the alleged symptoms and that Singleton's statements about the intensity, persistence, and functional limitations were substantiated by the objective medical evidence alone. R.p. 73. However, the medical consultant expected Singleton's condition to improve within twelve months from the date of onset and assessed his RFC at the light exertional level as of November 28, 2019. R.pp. 73-75. This assessment was conducted nine months after the original alleged onset date and one year prior to the amended alleged onset date.
On May 16, 2020, a state agency medical consultant reviewed the file at the reconsideration level-six months after the twelve-month duration point where Singleton's condition was expected to improve, and three months prior to the amended alleged onset date. R.pp. 79-87. The state agency medical consultant also assessed RFC at the light exertional level; however, the medical consultant noted that there was no indication that there was a medical opinion from another source, that there were no new medical records (medical evidence of record - “MER”) submitted or obtained at the reconsideration level, and that Singleton had not submitted a current Function Report-Adult (form SSA-3373) at the reconsideration level. R.p. 85. Despite this, no consultative examination was ordered. R.p. 85.
In his decision, the ALJ did not assess the persuasiveness of these opinions nor explain how the factors of supportability and consistency were considered. See R.pp. 19-20. This was plainly legal error. See 20 C.F.R. § 404.1520c(b) (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.” (emphasis added)); see Brown, 873 F.3d at 267 (noting, to warrant remand, a claimant must either show the ALJ has incorrectly applied a legal standard or show the ALJ's factual findings are not supported by substantial evidence). Accordingly, remand is warranted. See Bonnett v. Kijakazi, 859 Fed.Appx. 19, 20 (8th Cir. 2021) (noting failure to comply with opinion-evaluation regulation was legal error, which necessitated remand); Harriet C. v. Kijakazi, No. CV 1:21-3753-MBS-SVH, 2022 WL 16973008, at *25 (D.S.C. July 25, 2022) (“Failure to consider supportability or consistency will likely necessitate remand.”), report and recommendation adopted sub nom. Cornett v. Kijakazi, No. 1:21-3753-SAL, 2022 WL 16967689 (D.S.C. Nov. 16, 2022).
Moreover, this further highlights the flaws in evaluating the persuasiveness of Dr. Gleaton's opinion, as the new regulations contemplate that an ALJ will consider other opinions in the record when analyzing the consistency factor. See Revisions to Rules, 82 FR 5844-01 at 5854 (“Our final rules provide an appropriate framework to evaluate situations when multiple medical sources provide medical opinions that are not consistent.”); 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (“The more consistent a medical opinion . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” (emphasis added)).
B. Remaining allegations of error
Singleton also argues the ALJ conducted an improper subjective complaint analysis under SSR 16-3p, and that an inaudible response in the hearing transcript regarding loss of concentration and attention necessitates remand. With respect to the improper subjective complaint analysis, Singleton highlights the Defendant Commissioner's argument that there were few medical records presented since the amended alleged onset date. Singleton argues evidence prior to that date is just as relevant to the determination of disability. ECF No. 20 at 1-5.
Although remand is already warranted, the undersigned finds it prudent to briefly note that the Social Security regulations provide that an ALJ “will consider all evidence in [a claimant's] case record when [making] a determination or decision whether [the claimant is] disabled.” 20 C.F.R. § 404.1520(a)(3). Indeed, this Court has noted that “all evidence” under § 404.1520(a)(3) includes medical records predating a claimant's alleged onset date. Lewis v. Saul, No. 5:19-CV-02298-DCN, 2021 WL 1040512, at *3 (D.S.C. Mar. 18, 2021); see also Cotton v. Colvin, No. 5:14-CV-425-FL, 2015 WL 5714912, at *3 (E.D. N.C. Sept. 29, 2015) (“Where evidence predating the alleged date of disability is made part of the record, the regulations require the Commissioner to consider that evidence.”).
The ALJ's repeated notation that there were few medical records presented since the amended alleged onset date suggests, perhaps, that the ALJ was only interested in evidence subsequent to that date. See, e.g., R.p. 17 (“[Singleton] has produced limited primary care treatment notes [since the] amended alleged onset date.”); R.p. 18 (“Generally, evidence presented since [Singleton's] amended alleged onset date[] reflects mild or minimal objective findings on exam, no need for interventional treatment, no referral to specialists . . .”). Indeed, as stressed by Singleton, there is objective clinical evidence-prior to the amended alleged onset date-which is arguably consistent with Singleton's subjective statements and would be relevant to an evaluation under SSR 16-3p. See ECF No. 14 at 18-20. To the extent this temporal line in the sand impacted the ALJ's consideration of evidence-including, for example, the state agency opinions that were issued prior to the amended alleged onset date-it was error. See, e.g., Cunningham v. Berryhill, No. 5:17-CV-301-FL, 2018 WL 6731380, at *4 (E.D. N.C. Nov. 19, 2018) (noting the fact that a medical opinion “was issued some six months prior to Claimant's alleged onset date does not excuse the ALJ's failure to consider and weigh it”), report and recommendation adopted, No. 5:17-CV-301-FL, 2018 WL 6729784 (E.D. N.C. Dec. 21, 2018).
Upon remand, the ALJ should give due consideration to all of the evidence in the record. See Lewis, No. 5:19-CV-02298-DCN, 2021 WL 1040512, at *3 (noting “a denial of benefits is not supported by substantial evidence if the ALJ ‘has [not] analyzed all evidence and . . . sufficiently explained the weight he has given to obviously probative exhibits'” and remanding with instruction to consider all relevant evidence, including pre-disability onset date evidence (quoting Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984))). With respect to any remaining claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ's prior decision has no preclusive effect, as it is vacated, and the new hearing is conducted de novo).
V. CONCLUSION
It is recommended that the decision of the Commissioner be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative review.
The parties are directed to the next page for their rights to file objections to this 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
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).