Opinion
C/A No. 2:20-cv-00970-RMG-MGB
04-23-2021
KENDALL L. SMALL, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Kendall L. Small ("Plaintiff"), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for an award of benefits.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 29 years old on his alleged disability onset date of August 12, 2011. (R. at 679.) Plaintiff claims disability due to Legg Perthes (joint deformity). (R. at 284.) Plaintiff has past relevant work as an industrial truck mechanic. (Id. at 679.)
Plaintiff filed an application for DIB and SSI on August 15, 2011 (R. at 234.) His application was denied initially and on reconsideration. (R. at 109.) After a hearing before an Administrative Law Judge ("ALJ") on March 14, 2013, the ALJ issued a decision on April 17, 2013, in which the ALJ found that Plaintiff was not disabled. (R. at 109-18.) The Appeals Council vacated the ALJ's decision based on new evidence from the Department of Veterans Affairs submitted after the ALJ issued his decision. (R. at 124-25.) The ALJ held a subsequent hearing on March 26, 2015. (R. at 18.) On May 18, 2015, the ALJ issued a decision in which he found Plaintiff had the residual functional capacity to perform light work, and he concluded that Plaintiff was not disabled. (R. at 18-29.) On September 20, 2018, the Honorable Richard M. Gergel issued an order reversing the ALJ's decision and remanding the case to the Commissioner. (R. at 773-74.)
On January 25, 2019, the Appeals Council vacated the Commissioner's decision and remanded the case to an ALJ "for further proceedings." (R. at 795.) After a third hearing before an ALJ on August 29, 2019, the ALJ issued a third unfavorable decision on November 12, 2019. (R. at 688-80.) This ALJ decision is the Commissioner's final decision for purposes of judicial review and is the subject of this civil action filed by the Plaintiff.
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 last met the insured status requirements of the Social Security Act on December 31, 2016.
(2) The claimant did not engage in substantial gainful activity since August 12, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative disc disease (DDD) (lumbar and cervical spine) and degenerative joint disease (DJD) (left hip) (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).(R. at 668-80.)
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he can operate foot controls occasionally on the left. The claimant can occasionally reach overhead bilaterally. He can reach in all other directions frequently. The claimant can occasionally climb ramps and stairs, as well as occasionally, balance, stoop, kneel, and crouch. He can never climb ladders, ropes, scaffolds, or crawl. The claimant can never work on unprotected heights; operate a motor vehicle as an occupational requirement; or be exposed on a concentrated basis to extremes of cold. The claimant requires a sit/stand option, defined as a brief postural change at, or near, the work station, no more frequently than twice an hour and a duration no greater than 5-mintues each. He requires the use of a hand held assistive device in the nature of a cane for prolonged ambulation, ascending or descending slopes or traversing over uneven terrain. The claimant's time off task needs can be accommodated by normal breaks.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on February 25, 1982 and was 29 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules support 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, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from August 12, 2011, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).
"[T]he definition of disability is the same under both DIB and SSI. . . ." Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
"Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion." Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to "reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled," the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not "reflexively rubber-stamp an ALJ's findings." Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs "must 'build an accurate and logical bridge' from the evidence to their conclusions." Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ erred in failing to find him disabled. More specifically, Plaintiff alleges that "[t]he ALJ again committed reversible error in failing to properly consider [Plaintiff's] 100 percent VA disability rating." (Dkt. No. 17 at 22.) Plaintiff also alleges that "[t]he ALJ's reasons for according 'little weight' to the opinion" of Plaintiff's treating physician "are not supported by substantial evidence." (Id. at 29.) Finally, Plaintiff alleges that "[t]he ALJ reversibly erred by failing to properly assess [Plaintiff's] subjective allegations." (Id. at 37.) Plaintiff asserts that the procedural history of this case and the significant errors in the ALJ's decision warrant the award of benefits on remand. (Id. at 39.)
For the reasons discussed below, the undersigned cannot find the ALJ's decision is supported by substantial evidence. Further, remand for reconsideration would serve no useful purpose here, where this case has already been remanded and the ALJ has held three hearings on Plaintiff's application over the past ten years. Accordingly, the undersigned recommends remanding this case for an award of benefits.
A. Consideration of VA Disability Rating
Plaintiff first argues that the ALJ failed to properly weigh the Department of Veterans Affairs' ("VA") finding that Plaintiff was disabled. (Dkt. No. 17 at 22; R. at 531.) On June 11, 2013, the VA found that Plaintiff had a combined disability rating of 90% as of August 31, 2011. (R. at 530-531.) The VA found that 70% of that rating was attributable to Plaintiff's service-connected condition of "Legg-calve perthes disease of the left hip[,] status post hip total hip arthroplasty with surgical scar and left hip strain." (R. at 529.) In February 2015, it was noted that Plaintiff's disability ratings were: Hip prothesis (70%); lumbrosacral or cervical strain (10%), limited flexion of knee (10%), limited flexion of thigh (10%), and shortening of bone in lower leg (10%). (R. at 557.) In a May 26, 2015 letter, the VA affirmed Plaintiff's 90% disability rating. (R. at 663.) The VA noted that Plaintiff was being "paid at the 100 percent rate because [he is] unemployable due to [his] service-connected disabilities," and that he was "considered to be totally and permanently disabled," effective December 1, 2014. (R. at 663.) In a September 9, 2019 letter, the VA reiterated Plaintiff's disability rating. (R. at 945.)
While a VA disability determination is not binding on the Commissioner, as a starting point the Administration must give substantial weight to a VA disability rating. See Robinson v. Colvin, No. 6:15-cv-1786-TMC-KFM, 2016 WL 3617971, at *9-11 (D.S.C. June 11, 2016), adopted by 2016 WL 3595564 (July 5, 2016). The ALJ should sufficiently explain the consideration given to a VA disability decision. Id.; Bird v. Comm'r, 699 F.3d 337, 343-44 (4th Cir. Nov. 9, 2012) ("SSA must give substantial weight to a VA disability rating"); see also SSR 06-03P, 2006 WL 2329939, at * 7(SSA) (ALJ "should explain the consideration given to [the VA disability determination] in notice of decision . . ."). Under Bird v. Comm'r, the Commissioner may give less weight to a VA disability rating when the record before the ALJ "clearly demonstrates" that such a deviation from a finding of substantial weight is appropriate. 699 F.3d at 344. In Woods v. Berryhill, the Fourth Circuit explained that, in order to afford less than substantial weight to another governmental agency's disability determination, the ALJ must give "persuasive, specific, valid reasons." 888 F.3d 686, 692 (4th Cir. 2018). Without such explanation, according to Woods, a court "cannot engage in a meaningful review." Id. at 692-93.
In the case at bar, the ALJ first acknowledged the Bird standard before analyzing Plaintiff's VA disability rating as follows:
In the present case, the VA found the claimant had disability rating of combined service/connected disabilities rating of 90% comprised of 70% for hip prosthesis, 10% for lumbosacral strain, 10% for left knee strain, 10% for right hip strain, 0% for leg length discrepancy, 0% for right knee strain, and 0% for scars. The evidence indicates that since the award of disability by the VA, treatment has been minimal and physical examinations performed have essentially been normal. The claimant has DDD by imaging and is status post left total hip replacement and 1 centimeter leg length discrepancy, which certainly will cause some functional limitations as reflected in the above residual functional capacity assessment but do not render the claimant unable to work. In short, evidence accumulated since the VA award may not be entirely consistent with the VA award but is consistent with the residual functional capacity set forth above. The VA did not find 100% disability for any specific impairment thereby suggesting that the claimant does have a residual capacity to do some functioning. Moreover, the claimant's surgeon described the claimant's gait as close to normal 6-months after surgery. The claimant's leg length discrepancy was approximately 1-centimeter. A heel lift was recommended once the claimant was a year out from surgery. The only activity limitation Dr. Lambert documented on February 9, 2011, was no running. In August 2013, the claimant ambulated with a normal gait without an assistive device despite his left hip prosthesis and spondylosis. Similarly, the claimant's February 2015 musculoskeletal examination was normal. The undersigned has considered the claimant's combined impairments in arriving at the above residual functional capacity, and, as such accords the claimant's VA disability rating less than substantial weight (Exhibits 15D, 2F, 14F, 17F).(R. at 676-77.)
While the ALJ employed the proper standard to begin his analysis, he still failed to provide substantial evidence to support his decision to afford the VA rating "less than substantial weight." (R. at 677.) As an initial matter, it is unclear whether the ALJ recognized that the VA continued to affirm Plaintiff's disability through September 9, 2019. (R. at 945.) In the above analysis, the ALJ refers to Plaintiff's "award of disability" and finds the "evidence accumulated since the VA award may not be entirely consistent with the VA award . . . ." (R. at 677.) He then cites evidence dating from September 2010 through February 2015. (R. at 677.) This analysis appears to ignore the May 26, 2015 VA letter, affirming Plaintiff's disability and finding Plaintiff was totally and permanently disabled, effective December 1, 2014. It also ignores the September 9, 2019 VA letter reiterating Plaintiff's disability rating. The ALJ's apparent failure to consider these communications is significant, given that they indicate the VA found the evidence gathered after August 31, 2011 continued to support an award of disability. Because it is unclear whether the ALJ considered the entirety of the VA's disability findings, the undersigned cannot find that the decision to afford the VA rating "less than substantial weight" is supported by substantial evidence.
Additionally, the records relied on by the ALJ to support his analysis do not support according the VA rating less than substantial weight. First, the ALJ referred to a September 13, 2010 examination "six months out from [Plaintiff's] left total hip" replacement, documenting Plaintiff's "close to normal" gait. (R. at 335, 667.) As discussed by the ALJ, the physician noted a leg length discrepancy of approximately 1 centimeter, and he recommended "no heel lift of any sort . . . until the one-year follow up" so that Plaintiff's muscles could "incorporate around the pelvic obliquity." (R at 336.) In this same examination, the physician noted that Plaintiff "is doing intense physical therapy." (R. at 335.)
The ALJ also indicated that Plaintiff only had one activity limitation on February 9, 2011, which was "no running." (R. at 677.) Here, the ALJ is referring to a physician's recommendation that Plaintiff is limited to "no running" and the opinion that Plaintiff can employ physical therapy "at his own pace." (R. at 338.) However, the medical record documents Plaintiff's decreased mobility over time and his allegations of pain. (R. at 525.) More specifically, a treating physician opinion dated December 8, 2011, indicates Plaintiff was much more limited in his physical activity beyond simply a ban on running. Plaintiff's treating physician opined that Plaintiff cannot stand or sit for more than one hour in an eight hour workday because Plaintiff "has severe discomfort or pain if standing or sitting for" a greater length of time. (R. at 454.) He opined that Plaintiff's "condition will worsen with increasing age." (R. at 455.) Certain VA records dated February 21, 2012, document a 2 centimeter leg length discrepancy stemming from the hip replacement surgery, which caused "constant left hip pain." (R. at 629-30.) A March 13, 2012 medical record assesses Plaintiff with "chronic" low back, knee, and ankle pain. (R. at 599.) Records from a November 2012 examination note that Plaintiff is "positive" for "arthritic manifestations hip joints"; "back pain"; "joint pain"; and "joint swelling." (R. at 524.) The records from this examination also note Plaintiff's "severely reduced" range of movement." (R. at 525.) Records from June 2016 note that Plaintiff has "joint pain" in his "right shoulder and left hip." (R. at 1056.) On examination, Plaintiff was noted to have normal but slow range of motion due to pain and crepitus. (R. at 1057.)
While the ALJ discounted this opinion evidence, the undersigned finds the weight afforded to this opinion is not supported by substantial evidence. See infra section B.
The ALJ also cited to a physical examination from August 12, 2013, documenting Plaintiff's "normal gait and balance," wherein Plaintiff did not use an assistive device. (R. at 574, 677.) However, in this same examination, Plaintiff was referred to an orthopedist for his leg length discrepancy, because Plaintiff "has noticeable limb length discrepancy as a result [of] lengthening of left leg." (R. at 559, 572.) A "lower extremity bone length study" was recommended. (R. at 572.)
The ALJ also referred to a "normal" musculoskeletal examination in February 2015. (R. at 677.) This February 2015 examination was an emergency treatment record at the VA for chest pain Plaintiff had experienced since December 2014. (R. at 561.) The examination focused on Plaintiff's cardiac impairment and, therefore, the musculoskeletal exam was limited to "No body tenderness, crepitus, or deformity." (R. at 564.) The medical notes from this examination summarized Plaintiff's medical history to include, since March 13, 2012, arthralgia of the hip with pain on rotation and pain in the groin; knee arthalgia; and pain in the joint involving the ankle and foot. (R. at 561.)
In addition to the above medical records, the ALJ also found here that the VA "did not find 100% disability for any specific impairment thereby suggesting that the claimant does have a residual capacity to do some functioning." (R. at 677.) Here, the ALJ again appears to ignore the May 26, 2015 letter from the VA finding that Plaintiff was "considered to be totally and permanently disabled," effective December 1, 2014. (R. at 663.) Further, the ALJ considered Plaintiff's same alleged impairments as those rated by the VA. While the VA did not rate any specific impairment as 100%, the ALJ is to "consider the combined effects of all [a claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 404.1523(c) (emphasis added). Given this directive and that the VA found Plaintiff permanently disabled, it is unclear why the lack of a 100% disability rating for any specific impairment is significant to the ALJ.
For the foregoing reasons, the ALJ's decision to afford less than substantial weight to the VA disability rating is not supported by substantial evidence. See, e.g., Northern v. Colvin, No. 1:15-CV-445, 2016 WL 5956636, at *4 (M.D.N.C. Oct. 12, 2016) (remanding case in which ALJ gave VA disability determination limited weight; noting the ALJ noted essentially normal-to-moderate physical findings, normal mental status examination, wide and varying activities of daily living, and a GAF score reflective of only moderate limitations; finding the ALJ "summarily dismissed" VA conclusion finding that claimant was 100% disabled "without either parsing that conclusion into its component findings or considering the rationale behind those findings"); Gannon v. Colvin, No. 9:15-CV-3250-RMG-BM, 2016 WL 5339698, at *6-7 (D.S.C. Aug. 22, 2016) (the ALJ's minimal discussion of the VA rating was not enough to show that a deviation from a finding of substantial weight was appropriate; remanding for a more proper weighing under the methodology outlined in Bird), adopted by 2016 WL 5338504 (Sept. 21, 2016); Riggins v. Colvin, No. 0:15-CV-2429-BHH-PJG, 2016 WL 4249509, at *4 (D.S.C. July 25, 2016) (remanding where "[t]he court is unable to determine based on the limited reasons and discussion offered by the ALJ whether the ALJ's finding that the VA determination was entitled to little weight is supported by substantial evidence"). Accordingly, the undersigned therefore recommends the ALJ erred in his analysis of the VA disability rating.
B. Treating Physician Opinion
Plaintiff next argues that "[t]he ALJ's reasons for according 'little weight' to the opinion" of Plaintiff's treating physician "are not supported by substantial evidence." (Dkt. No. 17 at 29.) An ALJ is required to assign weight to every medical opinion in a claimant's record. 20 C.F.R. §§ 404.1527(c) ("Regardless of its source, we will evaluate every medical opinion we receive."); 404.1527(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. 20 C.F.R. 404.1527(c)(2). The Fourth Circuit has recently reiterated the treating physician rule in Arakas v. Commissioner, explaining that a treating physician "opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record." 983 F.3d at 107 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). If a treating physician's opinion is not accorded controlling weight, it still must be evaluated and weighed "pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). The Arakas Court observed that "SSR 96-2p further notes that '[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'" Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p). Importantly, a "treating physician's testimony is ignored only if there is persuasive contradictory evidence." Id. (emphasis in original) (quoting Coffman v. Bowman, 829 F.2d 514, 518 (4th Cir. 1987)).
The Social Security Administration has amended the "Treating Physician Rule," effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2). Because Plaintiff's claim was filed before the effective date of the change, the decision is reviewed under the regulation in effect at that time, 20 C.F.R. § 404.1527.
SSR96-2P was rescinded effective March 27, 2017 as part of the amendment of the "Treating Physician Rule." SSA-2012-0035, 2017 WL 3928298. However, it was in effect at the time the Plaintiff filed his claim.
Plaintiff's treating physician, Dr. David Castellone M.D., completed a Physician Questionnaire on December 8, 2011, in which he opined Plaintiff became disabled in March 2010, following Plaintiff's surgery for Legg Perthes disease. (R. at 453.) He diagnosed Plaintiff with osteoarthritis of the left hip and degenerative disc disease with bulging disc. (R. at 453.) Dr. Castellone opined that Plaintiff cannot stand or sit for more than one hour in an eight hour workday because Plaintiff "has severe discomfort or pain if standing or sitting for" a greater length of time. (R. at 454.) He opined that Plaintiff can lift 5 pounds occasionally, but never any greater weight. (R. at 454.) He restricted Plaintiff from climbing stairs or ladders and bending. (R. at 454.) Dr. Castellone also opined that Plaintiff required eight rest breaks during the day for a duration of 10-15 minutes per break. (R. at 455.) He noted Plaintiff took certain medications, but that Plaintiff experienced "sleepiness" when taking Norco. (R. at 455.) Dr. Castellone noted that Plaintiff experienced "severe" pain due to his impairment and he opined that Plaintiff's reports of pain are credible. (R. at 455.) He opined that Plaintiff's "condition will worsen with increasing age." (R. at 455.)
After summarizing Dr. Castellone's opinion in his decision, the ALJ assessed this opinion evidence as follows:
Dr. Castellone's statements are not fully supported by the medical evidence of record, and is speculative in nature. Notably, the claimant was assessed by a neurologist as having a normal gait (Exhibit 19F).
Dr. Castellone's opinion is accorded little weight, as it is inconsistent with the claimant's generally benign examination in November 2011, with Dr. Rojugbokan. Dr. Castellone's office notes consistently document that the claimant had "left weakness and leg" [sic], a positive straight leg raise, tenderness, and spasm lumbosacral paraspinals. Dr. Castellone noted diagnoses of recurrent back and hip pain. He prescribed the claimant Norco, monthly. Notably, Dr. Castellone consistently described the claimant as being in no acute distress. Dr. Rojugbokan noted that the claimant exhibited normal muscle strength throughout his body and a normal range of motion in his hips. Additionally, the claimant did not ambulate with an assistive device. Furthermore, the claimant never exhibited daytime
sleepiness at any examination of record to support his testimony and reports of medication side effects; rather, the claimant appeared fully alert and oriented at the examinations of record. Moreover, determinations of whether an individual is disabled is reserved to the Commissioner (Exhibits 8F, 10F).(R. at 678.)
Here, Plaintiff argues that the ALJ's assessment of this opinion evidence is not supported by substantial evidence. (Dkt. No. 17 at 29.) Plaintiff asserts that the "record as a whole" supports, rather than contradicts Dr. Castellone's opinions. (Id. at 37.) The undersigned agrees—the ALJ's analysis fails to establish that Dr. Castellone's opinion is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record. Accordingly, the ALJ should have afforded the opinion controlling weight. See Arakas, 983 F.3d at 107.
As an initial matter, the ALJ's finding that Dr. Castellone's opinion is speculative is not helpful. The opinion is not inherently speculative, and the ALJ fails to point to a specific portion of the opinion that he believes is speculative. To the extent the ALJ is referring to the opinion that Plaintiff's condition would worsen, the evidence indicates that Plaintiff's condition indeed worsened over time. As discussed above, the records document Plaintiff's limited range in movement and the significant pain Plaintiff has experienced in his joints over the years. (R. at 629-30, 524-25, 1056-57.) Further, while the ALJ refers to treatment records from Dr. Castellone's practice, he does not cite here to any exhibits that contain those records. As the ALJ acknowledges, these treatment records document Plaintiff's "left weakness and leg," positive straight leg raises, tenderness in his extremities, and spasm lumbosacral paraspinals. (R. 435-43.) Such findings support Dr. Castellone's medical opinion and do not contradict the observation that Plaintiff was not in acute distress upon examination.
In his analysis, the ALJ also referred to a consultative examination performed at the request of the Commissioner on November 9, 2011, remarking upon Plaintiff's non-use of an ambulation-assisting device. (R. at 426-430, 678.) During this examination, Dr. Adebola Rojugbokan, M.D., interviewed Plaintiff regarding his condition. In reviewing Plaintiff's systems with him, Dr. Rojugbokan stated Plaintiff complained "about backaches," "swelling and redness especially in the distal extremities," "tenderness on the hip," "weakness," and "limitation in the range of motion of the back." (R. at 428.) While Dr. Rojubokan found Plaintiff exhibited normal muscular strength in his body and a normal range of motion in his hips, he also noted that "[i]nspection of the left hip showed that the patient has an 18-cm well-healed surgical scar on the lateral aspect of the left hip" with "slight tenderness on palpation." (R. at 429.) He also reported that Plaintiff "seems to have a left leg, which is shorter than the right leg," and "walked with a slightly abnormal gait as [he] tend[s] to favor the left hip" but "did not have any kind of assistive or ambulating device." (R. at. 429-430.) Further, in his account of Plaintiff's "history of present illness," Dr. Rojugbokan noted that Plaintiff's "ability to walk or ambulate has . . . been affected and his ability to perform his activities of daily living has also been affected." (R. at 426.)
Finally, the ALJ indicates that because Plaintiff "never exhibited sleepiness at any examination of record," there is no support to Dr. Castellone's opinion that the Norco medication caused Plaintiff to be sleepy. (R. at 678.) During the most recent ALJ hearing, Plaintiff testified that he stopped the "pain meds . . . towards the end of 2012, 2013" because they caused him "to sleep all day" and made him "a zombie." (R. at 725-26.) The ALJ does not recognize in his decision that Plaintiff's examination records would not include observations of sleepiness where Plaintiff was no longer taking those medications.
Here, the undersigned remains mindful that the Court's review is focused on whether the ALJ's opinion is supported by substantial evidence and that its role is not to "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Craig, 76 F.3d at 589. Because the ALJ's analysis fails to establish that Dr. Castellone's opinion is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record, the opinion should have been afforded controlling weight. Arakas, 983 F.3d at 107. The undersigned therefore recommends the ALJ erred in his according little weight to this treating physician's opinion.
C. Consideration of Plaintiff's Subjective Complaints
Finally, Plaintiff alleges that "[t]he ALJ reversibly erred by failing to properly assess [Plaintiff's] subjective allegations." (Dkt. No. 17 at 37.) In evaluating a claimant's subjective symptoms, the ALJ follows a two-step process under which he must first determine whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms. Tyler v. Berryhill, No. 8:15-CV-04457-JDA, 2017 WL 461008, at *9 (D.S.C. Feb. 3, 2017). After determining the presence of an impairment, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which those symptoms limited his functioning. Id. at *10.
To guide the step two evaluation, 20 C.F.R. § 404.1529(c) provides a structure by which the SSA considers "objective medical evidence" and "other evidence." While the former "is a useful indicator to assist . . . in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms . . . may have on your ability to work," the SSA will not reject statements about intensity, persistence and effects "solely because the available objective medical evidence does not substantiate your statements." 20 C.F.R. § 404.1529(c)(2).
The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *9. Specifically, the ALJ's decision must "consider all of the evidence in an individual's record," including, but not limited to, the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; any measures other than treatment the individual uses or has used to relieve pain or other symptoms; and any other factors concerning the individual's functional limitations and restriction due to pain or other symptoms. SSR 16-3p, at *2; see also 20 C.F.R. §§ 404.1529(c) and 416.929(c). The ALJ need not accept the claimant's subjective complaints "to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment." Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996).
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p, on March 28, 2016. See 2017 WL 5180304, at *13. Because the subject ALJ decision was issued after March 28, 2016, the undersigned has analyzed Plaintiff's allegations under SSR 16-3p. The undersigned notes that SSR 16-3p discontinues use of the term "credibility;" however, "the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider the claimant's report of his own symptoms against the backdrop of the entire case record." Best v. Berryhill, No. 0:15-CV-02990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (internal citations omitted).
In his decision, the ALJ discussed Plaintiff's testimony at the most recent ALJ hearing:
The claimant appeared and testified at the hearing on August 28, 2019. The claimant testified that he lives with his wife and 2 children, ages 11 and 16. His wife does not work. The claimant's father-in-law lives with them. His father-in-law is employed. The claimant was in the United States Marine Corps from 2008 until 2011. He testified that his ability to walk, bend, and lift over 5 pounds is limited. The claimant said that Dr. Castleman [sic] told him not to lift over 5 pounds. He
alleges being unable to walk for more than 10 minutes or sit for more than 10-15 minutes, due to pain. The claimant said that his knees "give out." During a typical day, the claimant reported that other than washing a "few dishes," that he spends his day on the couch or lying down. The claimant also sits in the recliner. He might run an errand. The claimant helps his daughter with her homework. He watches football and might go to his son's sports game if he is not in too much pain. The claimant said that he uses a cane, for safety, 80% of the time. He takes Ibuprofen for pain.(R. at 673-74.)
The hearing transcript indicates Plaintiff was referring to Dr. Castellone here. (R. at 718-19.)
The undersigned concluded that while "Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms," Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (R. at 674.) Later in his decision, the ALJ found that Plaintiff's subjective complaints about pain did not undermine the RFC assessment:
In sum, the above residual functional capacity assessment is supported by the weight of the evidence of record. The undersigned has accorded the claimant the benefit of the doubt with regard to the use of a cane, as its use is not fully supported by the evidence of record. Notably, records dated March 13, 2012, the claimant reported that he exercised regularly by walking and lifting weights (Exhibit 17F/63). Despite a number of physical complaints, the claimant's physical examinations have been generally benign. He has been treated conservatively, aside from his left total hip replacement. Self-reported limitations are not themselves indicative of disabling impairments. Accordingly, a finding that the claimant was incapable of all work activity is not supported by the evidence of record as a whole, for the reasons explained above.(R. at 678-79.)
As discussed above, the undersigned has found the ALJ erred in his consideration of the VA disability rating and in his assessment of the treating physician's opinion. Both of these records are consistent with Plaintiff's subjective complaints about the limitations he allegedly suffered due to his pain. Notably, Plaintiff's treating physician found Plaintiff's "reports of pain" to be "credible." (R. at 455.) Because the ALJ failed to properly consider these significant pieces of evidence, the undersigned cannot find that his analysis of Plaintiff's subjective complaints are supported by substantial evidence. See Laffitte v. Saul, No. 1:20-CV-163, 2021 WL 681102, at *10 (M.D.N.C. Feb. 22, 2021) (remanding for failure to properly consider subjective complaints where, inter alia, "the ALJ not only mischaracterized the records and ignored a plethora of contrary evidence throughout the nearly 4000 pages of medical evidence, . . . he also omitted the objective evidence that did support her claims"). Accordingly, the undersigned recommends the ALJ also erred in his analysis of Plaintiff's subjective complaints.
D. Recommendation to Remand with Award of Benefits
Having found multiple errors in the ALJ's decision, remand is appropriate. The Fourth Circuit has held that it is appropriate for a federal court to "reverse without remanding where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
Plaintiff asserts here that the procedural history of this case and the significant errors in the ALJ's decision warrant the award of benefits on remand. (Dkt. No. 17 at 39.) The undersigned agrees. Remand for reconsideration would serve no useful purpose here, where this case has already been remanded and the ALJ has held three hearings on Plaintiff's application over the past ten years. See, e.g., Anderson v. Saul, No. 7:19-CV-132-BO, 2021 WL 328846, at *2 (E.D.N.C. Feb. 1, 2021) (remanding for award of benefits where "reopening this case for another hearing would serve no purpose"); Gilliard v. Berryhill, No. 8:17-CV-1435-RMG, 2018 WL 4092069, at *3 (D.S.C. Aug. 28, 2018) (remanding for award of benefits where claimant's application has been pending for six years).
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for an award of benefits.
IT IS SO RECOMMENDED. April 23, 2021 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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).