Opinion
Civil Action 4:21-CV-01785-RMG-TER
03-09-2022
GERALD LAMAR SMITH, Plaintiff, v. Kilolo Kijakazi, [1] Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
This is an action brought 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, denying Plaintiff's claim for disability insurance benefits (DIB) and supplemental security income(SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
In April 2019, Plaintiff filed an application for DIB and SSI with an alleged onset date of March 29, 2019. (Tr. 17). Plaintiff's claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. Plaintiff and a vocational expert (VE) testified at a hearing in November 2020. The Administrative Law Judge (ALJ) issued an unfavorable decision on November 24, 2020, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 17-27). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on May 27, 2021, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). On June 14, 2021, Plaintiff filed an action in this court. (ECF No. 1).
B. Plaintiff's Background and Medical History
Plaintiff was born on September 14, 1966, and was fifty-two years old on the alleged onset date. (Tr. 26). Plaintiff has past relevant work experience as a shipping receiver clerk and fabric inspector. (Tr. 25-26).
C. The ALJ's Decision
In the decision of November 24, 2020, the ALJ made the following findings of fact and conclusions of law (Tr. 17-27):
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
2. The claimant has not engaged in substantial gainful activity since March 29, 2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: congestive heart failure, nonischemic cardiomyopathy, atrial fibrillation, and atrial mass excision (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).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant can never crawl or climb ladders, ropes or scaffolds; the claimant can only occasionally climb ramps/stairs, balance, stoop, kneel, and crouch; the claimant must avoid concentrated exposure to extreme cold/heat and humidity; the claimant must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc.; and the claimant must avoid concentrated exposure to hazards, such as dangerous machinery and unprotected heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 14, 1966 and was 52 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education (20 CFR 404.1564 and 416.964).
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, 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 March 29, 2019, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
II. DISCUSSION
Plaintiff argues the ALJ erred in evaluating the opinions of Dr. MacDonald, Dr. Rousseau, Dr. Ruffing, NP Coleman, and state agency non-examining consultants. Plaintiff also argues the ALJ failed to properly consider opinions of a Class III heart rating. (ECF No. 8 at 26). Plaintiff argues these errors are outcome determinative based on the Grids if Plaintiff was limited to less than light work with Plaintiff's age and limited education. (ECF No. 8 at 27).
Defendant argues that the ALJ's decision is supported by substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
Opinions
Plaintiff argues the ALJ erred in evaluating the opinions of Dr. MacDonald, Dr. Rousseau, Dr. Ruffing, NP Coleman, and state agency non-examining consultants. Plaintiff argues the ALJ failed to properly consider opinions of Class III heart ratings.
For applications filed on or after March 27, 2017, such as this action, the regulatory framework for considering and articulating the value of medical opinions has been changed. See 20 C.F.R. § 404.1520c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Importantly, the new regulations no longer require any special significance be given to opinions by a treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). The ALJ is not required to defer to or give any specific weight to medical opinions. 20 C.F.R. § 404.1520c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant(length, frequency, purpose, extent, and examining); (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. 20 C.F.R. § 404.1520c(a), (b)(2). An ALJ is not required to explain how the remaining factors were considered. 20 C.F.R. § 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
Dr. MacDonald
In July 2019, Dr. MacDonald, Plaintiff's treating cardiologist, completed a form for Plaintiff's long term disability insurance policy. (Tr. 788). Plaintiff was limited to slow walking only and no physical work due to severe cardiac dysfunction. (Tr. 788). Plaintiff could do desk work only. It was unlikely that Plaintiff could return to work with restrictions and never return to work without restrictions. (Tr. 788). Dr. MacDonald wrote “NA FCIII cardiac disability” over a form for posturals and exertionals. (Tr. 790). The ALJ found Dr. MacDonald's July 2019 opinion was not persuasive because it was rendered shortly after Plaintiff's surgery, was supported by treatment up to July 2019, but was inconsistent with Plaintiff's progress after July 2019. The ALJ cited as support for these statements: Plaintiff's fairly normal exams, Plaintiff's reports to his providers, citing Exhibits 3F, 5F, 6F, 7F, 8F, 9F, 10F, 11F, 13F, 14F, 15F, 17F, Plaintiff's reported daily activities, and Dr. MacDonald's later opinions at Exhibits 10F and 11F. (Tr. 24).
Plaintiff argues the cited exhibits do not support progress equal to the ability to work. (ECF No. 8 at 20). Reviewing the support cited by the ALJ as to progress after July 2019, Exhibits 3F, 5F, 6F, 7F, and 8F are NOT notes after July 2019 at all. (Tr. 508-537)(3F, March/April 2019 Dr. MacDonald treatment notes);(Tr. 546-560)(5F, April/May 2019 NP Coleman notes); (Tr. 565-654)(6F, March to June 2019 hospital treatment records from Dr. MacDonald);(Tr. 660-675)(7F, April to June 2019 Dr. MacDonald treatment notes); (Tr. 682-701)(8F, May to July 11, 2019 treatment notes from Drs. Ruffing and Rousseau). However, these particular exhibits could support the ALJ's statement of Dr. MacDonald's July 2019 opinion being “supported by the claimant's treatment up until” July 2019 but cannot support the ALJ's statement of “inconsistent with the claimant's progress since July 2019.” (Tr. 24).
The remaining exhibits cited by the ALJ are Exhibits 9F, 10F, 11F, 13F, 14F, 15F, and 17F. (Tr. 24). Exhibit 9F is a September 13, 2019 note from NP Coleman. Plaintiff denied shortness of breath but reported fatigue from time to time. Plaintiff was exercising a few times a week with walking. (Tr. 704). Upon exam, an irregularly irregular rhythm was present. (Tr. 706). Under assessment/plan, Plaintiff was NYHA III and ACC/AHA stage C. (Tr. 706).
Exhibit 10F is a September 25, 2019 Dr. MacDonald treatment note. (Tr. 713). EF in the past was 35-40%. Pathology was chronic organized thrombus. Heart rate was still somewhat fast. “He continues to have discomfort in his chest wall which limits his ability to some extent. He has mild chronic fatigue. He is short of breath walking a flight of stairs. He tried to move some furniture this weekend and was significant only short of breath.” (Tr. 713). “At times, he coughs so hard that he gets nauseated.” (Tr. 713). EF at the visit was 45-50%. (Tr. 714). Atrial septum showed slight irregularity. Aortic valve was mildly sclerotic with mild regurgitation. (Tr. 714). Upon exam, an irregularly irregular rhythm was present. Chest exam was normal. (Tr. 717). ECG showed atrial fibrillation at 96bpm, left anterior fascicular block, poor R-wave progression, mild intraventricular conduction abnormality, and nonspecific ST segment and T-wave changes. (Tr. 718). Under plan, Dr. MacDonald stated: “He continued to have left ventricular systolic dysfunction and has functional class 2-3 limitation. Given his previous severe LV dysfunction, I feel that he should not be doing any strenuous work in the future.” (Tr. 718).
Exhibit 11F is a March 2020 Dr. MacDonald note. (Tr. 725). Plaintiff's heart rate was still fast. (Tr. 725). Plaintiff had occasional palpitations with activity or when lying down. Plaintiff had occasional lightheadedness. Plaintiff was short of breath walking about 300 feet or doing stairs. Plaintiff had intermittent soreness in his chest wall when trying to lift things. (Tr. 725). Upon exam, Plaintiff had an irregularly irregular rhythm. ECG showed atrial fibrillation at 101bmp, left anterior fascicular block, poor R-wave progression, mild intraventricular conduction abnormality, and nonspecific ST segment and T-wave changes. (Tr. 729). Under plan, Dr. MacDonald stated: “He has functional class II-III dyspnea consistent with his left ventricular systolic dysfunction and chronic atrial fibrillation.” (Tr. 729). Plaintiff had chest wall pain. Plaintiff's heart rate was too fast and medications were changed. “Do not think he should be doing any kind of long-term strenuous work given his cardiac dysfunction and previous heart surgery and atrial fibrillation.” (Tr. 729-730).
Exhibit 13F includes notes from Dr. Ruffing regarding sinuses and knees. On May 20, 2019, Plaintiff was seen by Dr. Ruffing for persistent atrial fibrillation and cardiomyopathy. (Tr. 745). Exam was normal, except for high blood pressure. (Tr. 746). Exhibit 14F is a nerve conduction report from August 2020. (Tr. 753). Exhibit 15F is treatment notes regarding a renal mass. (Tr. 756774). Exhibit 17F is treatment notes regarding a renal mass. (Tr. 777). Plaintiff denied everything on review of systems. (Tr. 778). Blood pressure was 143/104. Exam was normal.
It is unclear whether the ALJ created an accurate and logical bridge from the evidence he cited, as summarized above, to the conclusion that the opinion was inconsistent with Plaintiff's progress since July 2019. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016).
Nonetheless, as to Dr. MacDonald's September 2019 and March 2020 opinions(Exhibits 10F/10 and 11F/6 summarized above), the ALJ found them persuasive. (Tr. 24). The ALJ found that the two more recent Dr. MacDonald opinions were supported by explanation, treatment history, and objective findings and found the opinions were consistent with Plaintiff's reports of shortness of breath, chest wall soreness, and mild fatigue. (Tr. 24). Later, the ALJ states that the ALJ's RFC is supported by the recent opinions of Dr. MacDonald. (Tr. 25). Without further explanation by the ALJ, it is unclear how Dr. MacDonald's opinions of functional class II-III dyspnea consistent with left ventricular systolic dysfunction and chronic atrial fibrillation and no strenuous work long term support an RFC of walking up to 6 hours in a day, every day. While no “strenuous work” could be interpreted as vague as compared to the exertional SSA definitions of work, it is unclear, without explanation/analysis by the ALJ, where the Class III opinion would fall based on its definition. When weighing the Exhibit 10F and 11F opinions and finding them persuasive because they are supported and consistent, the ALJ makes no mention of the Class III classification opined. (Tr. 24). Class III is defined as: “There is marked limitation of activity. The patient is only comfortable at rest.
Defendant takes the position that a doctor stating a heart classification within an opinion is not an opinion under the regulations; it appears in the context of the instant case that the NYHA classification with its corresponding description may relate to a statement of restrictions in ability to perform physical demands, which would meet the definition of an opinion under 20 C.F.R. § 404.1513(a)(2)(i). See also Erwin, v. Saul, No. 0:20-CV-2671-DCC-PJG, 2021 WL 4342099, at *4-5 (D.S.C. Aug. 26, 2021), report and recommendation adopted sub nom., 2021 WL 4338979 (D.S.C. Sept. 23, 2021)(“Nor did the ALJ discuss Plaintiff's “AHA Stage C heart failure diagnosis with NYHA class III symptoms, ” (Tr. 589), which corresponds to “[m]arked limitation of physical activity. Comfortable at rest. Less than ordinary activity causes fatigue, palpitation, or dyspnea [(shortness of breath)].” .. It is unclear whether the ALJ considered these limitations and whether they would preclude Plaintiff from performing a range of sedentary work without any additional mental limitations... .the court is unable to determine whether the ALJ's decision as to the persuasiveness of the CCC opinion is supported by substantial evidence.”); Swofford v. Astrue, No. 8:10-CV-0938, 2011 WL 4055372, at *16 (D.S.C. Sept. 12, 2011) (referring to Class III as an opinion, but that the evidence there did not show any limitation on Plaintiff's abilities based on his diagnosis);Lowery v. Comm'r., No. 4:10-CV-00047, 2011 WL 2648470, at *4 (W.D. Va. June 29, 2011), report and recommendation adopted, 2011 WL 2836251 (W.D. Va. July 14, 2011)(referring to Class I-II as an opinion); Cannady v. Berryhill, No. 1:18-CV-00887-BHH-SVH, 2019 WL 1473318, at *13, *22 (D.S.C. Mar. 13, 2019), report and recommendation adopted sub nom., 2019 WL 1470134 (D.S.C. Apr. 3, 2019)(referring to questionnaire answer of Class II as an opinion); Jones v. Astrue, No. 8:11-CV-00796-JFA, 2012 WL 3135410, at *13 (D.S.C. Mar. 27, 2012), report and recommendation adopted, 2012 WL 3135270 (D.S.C. Aug. 1, 2012)(referring to Class III as an opinion); but see Daywalt v. Kijakazi, No. 1:20-CV-277, 2021 WL 3679304, at *10 (M.D. N.C. Aug. 19, 2021)(noting a signature by a doctor on an interrogation report which included the Class III notation was without any commentary on the continuing validity of the NYHA classification or offering any work-related restrictions).
People in this class are considered 30%-50% impaired.” § 7:210. New York Heart Association (NYHA) classifications of cardiac impairment, 2 Medical Information System For Lawyers § 7:210 (2d).
NP Coleman
Similar to Dr. MacDonald's two recent opinions post-surgery, NP Coleman opined presurgery that Plaintiff was to avoid strenuous activities including heavy lifting and straining, citing to Exhibit 5F/4. The ALJ found this opinion persuasive. (Tr. 24). The ALJ again did not mention that on the same page, the assessment was NYHA III and AHA stage C. (Tr. 548). The ALJ later stated the ALJ's RFC of walking up to six hours a day every day was supported by NP Coleman's opinion. (Tr. 25). Again, it does not appear a logical bridge from the evidence to the conclusion is presented by the ALJ as to this issue. Monroe, 826 F.3d at 189.
Stage C corresponds to objective evidence of moderately severe cardiovascular disease, marked limitation of physical activity, comfortable at rest and less than ordinary activity causes fatigue, palpitation, or dyspnea [(shortness of breath)]. See Erwin v. Saul, No. 0:20-CV-2671-DCC-PJG, 2021 WL 4342099, at *4 (D.S.C. Aug. 26, 2021), report and recommendation adopted sub nom. 2021 WL 4338979 (D.S.C. Sept. 23, 2021).
In formulating the RFC, the ALJ is required to “explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” SSR 96-8, *7. The ALJ's RFC cannot be said to be supported by substantial evidence where the court is left to guess how three opinions of treating providers can be found wholly persuasive by the ALJ because the ALJ found the opinions consistent and supported, and then the ALJ finds an RFC of walk up to six hours a day every day which the ALJ states is supported by these opinions, where the opinions by their heart functional classifications state Plaintiff has marked limitation in physical activity and less than ordinary activity causes shortness of breath.
Dr. Ruffing
On October 21, 2020, Dr. Ruffing, Plaintiff's primary care provider, submitted a letter opinion:
I am a family doctor. I have been treating Gerald Smith for several years. Mr. Smith suffers from non-ischemic cardiomyopathy, persistent atrial fibrillation, and heart failure. His echocardiogram initially showed an ejection fraction of 10% but it has improved to between 45 and 50%. Despite this improvement, Mr. Smith continues to suffer from persistent shortness of breath which I have clinically observed. Therefore, he would be limited to sedentary work due to the shortness of breath he experiences. These limitations have existed since March 2019.(Tr. 784)(emphasis added). The ALJ found this opinion not to be persuasive because it was not supported by objective evidence in Dr. Ruffing's treatment notes. (Tr. 25).
There was no exam on June 20, 2019 with Dr. Ruffing, Exhibit 13F/2. (Tr. 740). In November 2019, Plaintiff was seen for sinus congestion. (Tr. 741). Exam showed normal lung exam. (Tr. 742). Later in November, Plaintiff was seen for knee pain. (Tr. 744). There was no lung exam. (Tr. 744). In May 2020, exam was normal. (Tr. 746).
As to this part of Plaintiff's argument, it appears the ALJ accurately found Dr. Ruffing's opinion was not supported by Dr. Ruffing's own treatment notes. There is no notation of clinical observation of persistent shortness of breath by Dr. Ruffing.
The ALJ further found Dr. Ruffing's opinion inconsistent with Dr. MacDonald's notes and opinions. (Tr. 25). It is unclear whether the ALJ's reasoning is logical or whether there is a reasonable explanation given from the evidence to the conclusion as to the evaluation of Dr. Ruffing's opinion where the ALJ found Dr. MacDonald's opinion persuasive and consistent with reports of shortness of breath and chest wall soreness with exertion and where Dr. MacDonald found class II-III dyspnea(difficult or labored breathing) consistent with Plaintiff's left ventricular systolic dysfunction and chronic atrial fibrillation. From a review of the record, it appears Dr. MacDonald's notes and opinions may support Dr. Ruffing's opinion that Dr. Ruffing observed Plaintiff's shortness of breath and Plaintiff's shortness of breath limited Plaintiff to sedentary work. See 20 C.F.R. § 404.1520c(a), (b)(2). Substantial evidence does not support the ALJ's evaluation of Dr. Ruffing's opinion.
State Agency Non-examining Opinions
The ALJ found the non-examining consultant's opinions of light work were persuasive and supported by explanations and references to objective evidence. The ALJ found these opinions consistent with Dr. MacDonald's recent opinions. There is not a reasonable explanation by the ALJ of how Dr. MacDonald's opinion of Class III(marked limitation of activity, patient is only comfortable at rest) is consistent with a non-examining opinion of walk up to six hours a day every day. As to the reason that the non-examining opinions are supported by explanations and objective evidence, the narrative and opinion given by the consultant was in October 2019 and noted a Class II finding, not Class III. (Tr. 77). At reconsideration two months later, there was no notation of additional evidence considered. (Tr. 104).
Recently the interplay of the new regulations and the assessment of non-examining opinions was expounded upon:
The new regulatory standards certainly relax the standards for assessment of medical opinions, but they are not a license to uncritically accept the opinions of non-treating and non-examining physicians. Indeed, the priority given to assessing the consistency of opinions “with the evidence from other medical sources” in the new regulations is clearly designed to assure the claimant that the opinions of her treating and examining physicians will be weighed and considered and the opinions of in-house chart reviewers will not be uncritically accepted. § 416.920c(c)(2). The new regulations make much of the fact that no deference will be given to the opinions of any physicians. § 416.920c(a). This plainly includes the opinions of the Social
Security Administration's in-house doctors.Stanley v. Kijakazi, No. CV 5:20-3030-RMG, 2021 WL 5768650, at *5 (D.S.C. Dec. 6, 2021). Substantial evidence does not support the ALJ's evaluation of the non-examining opinions, especially as to the supportability and consistency factors, given the record regarding other opinions.
“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.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). The ALJ is obligated to consider all evidence, not just that which is helpful to his decision. Gordon v. Schweiker, 725 F.2d 231, 235-36 (4th Cir. 1984); Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987). Resolving conflicting evidence with reasonable explanation is an exercise that falls within the ALJ's responsibility and is outside the court's scope of review. See Mascio v. Colvin, 780 F.3d 632, 637-40 (4th Cir. 2015). The ALJ did not properly evaluate the opinions in the record in light of 20 C.F.R. § 404.1520c and the present record. It is not the court's “role to speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record.” Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. Dec. 17, 2015). “The ALJ's failure to ‘build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error.” Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017)(internal citations omitted). Based on the foregoing, the court can not find that the ALJ's decision regarding the evaluation of opinions is supported by substantial evidence and remand is appropriate. Upon remand, the Commissioner shall consider all of the arguments briefed by Plaintiff. (ECF No. 8).
III. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. Accordingly, pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.
The parties' attention is directed to the important notice on the next page.
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 2317
Florence, South Carolina 29503
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).