Opinion
C. A. 6:20-cv-00221-JMC-KFM
08-26-2021
Virginia Latrice Smith, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. § 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) benefits on August 2, 2017, alleging that she became unable to work on July 7, 2017. The application was denied initially (T r. 55-71) and on reconsideration (T r. 73-90) by the Social Security Administration. On August 2, 2018, the plaintiff requested a hearing (Tr. 144-45). On August 28, 2019, an administrative hearing was held at which the plaintiff, represented by counsel, appeared and testified before an administrative law judge (“ALJ”) while Jeannie Deal, an impartial vocational expert, appeared and testified via telephone (Tr. 35-54). On October 1, 2019, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (T r. 15-33). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on July 17, 2019 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.
(2) The claimant has not engaged in substantial gainful activity since July 7, 2017, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
(3) The claimant has the following severe impairments: lumbar degenerative disc disease, osteoarthritis, migraines, and obesity (20 C.F.R. § 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than a full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). Sedentary exertional work is described by the Commissioner of the Social Security Administration as requiring lifting/carrying of no more than 10 pounds at a time, sitting for six hours in an 8-hour workday, and standing and walking for two hours in an 8-hour workday. The claimant cannot climb ladders/ropes/scaffolds, but can occasionally climb ramps/stairs. She can never crawl, but can frequently balance, and occasionally stoop, crouch, and kneel as well as frequently perform handling/fingering and reaching. She must avoid any exposure to workplace hazards such as unprotected heights or dangerous machinery and concentrated exposure to extreme cold. She can sustain sufficient concentration in 2-hour increments to perform simple, routine, repetitive tasks at a GED reasoning level of no greater than 3, with occasional interaction with coworkers and the public. She is not expected to be off-task more than 10% of the workday, which is accommodated by regularly scheduled breaks. She must be allowed to alternate between sitting/standing positions.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on February 23, 1979 and was 38 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using 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 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from July 7, 2017, through the date of this decision (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by not explaining the residual functional capacity (“RFC”) findings, including failing to appropriately weigh opinion evidence from Leland Stoddard, M.D. (doc 15 at 15-21); failing to do a function-by-function analysis in evaluating the plaintiff's mental RFC (id. at 22-27); failing to appropriately address the plaintiff's visual impairments (id. at 27); and failing to evaluate the plaintiff's subjective complaints as required by SSR 16-3p (id. at 27-30). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 16 at 12-25).
Residual Functional Capacity
As noted above, the plaintiff challenges the sufficiency of the ALJ's RFC explanation (doc. 15 at 15-30). The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3).
Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than a full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). Sedentary exertional work is described by the Commissioner of the Social Security Administration as requiring lifting/carrying of no more than 10 pounds at a time, sitting for six hours in an 8-hour workday, and standing and walking for two hours in an 8-hour workday. The claimant cannot climb ladders/ropes/scaffolds, but can occasionally climb ramps/stairs. She can never crawl, but can frequently balance, and occasionally stoop, crouch, and kneel as well as frequently perform handling/fingering and reaching. She must avoid any exposure to workplace hazards such as unprotected heights or dangerous machinery and concentrated exposure to extreme cold. She can sustain sufficient concentration in 2-hour increments to perform simple, routine, repetitive tasks at a GED reasoning level of no greater than 3, with occasional interaction with coworkers and the public. She is not expected to be off-task more than 10% of the workday, which is accommodated by regularly scheduled breaks. She must be allowed to alternate between sitting/standing positions.(Tr. 20). The RFC was followed by a discussion of the record evidence by the ALJ (Tr. 20-25).
Medical Source Opinions
For applications filed on or after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. 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). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. at § 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; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. § 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. Id. § 404.1520c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. § 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.” Id. § 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.” Id. § 404.1520c(c)(2).
The record contains a medical source statement by Dr. Stoddard, dated June 19, 2018 (Tr. 1147-48). In the medical source statement, Dr. Stoddard opined that in an eight-hour workday, the plaintiff could sit/stand/walk eight hours. She could never lift and carry more than ten pounds. She could frequently twist and climb stairs; occasionally stoop; never kneel or crouch; and would need to shift positions at will every two hours. The plaintiff could never reach above shoulder, at waist level, below waist level, and could never engage in handling, fingering, or feeling. The plaintiff could repetitively use her right foot, left foot, and right land, but not her left hand. The limitations were opined as beginning May 10, 2018, and they were expected to last at least twelve months. The plaintiff did not have to elevate her legs and did not require the use of an assistive device. Dr. Stoddard noted that the plaintiff's restrictions were secondary to left shoulder surgery and that the plaintiff could not engage in a competitive work environment not accommodating his opined restrictions (Tr. 1147-48).
The ALJ considered the opinion by Dr. Stoddard and found it partially persuasive, noting:
[Dr. Stoddard's] opinion is essentially consistent with and supported by his treatment notes. However, it is noted that he did not communicate any restrictions in his treatment notes and during physical therapy, [the plaintiff] was able to perform essentially a full range of motion. The established residual functional capacity provides for unskilled, sedentary exertional work, a sit/stand option, and occasional interaction with others.(Tr. 24).
The plaintiff argues that the ALJ's decision erred in finding Dr. Stoddard's opinion partially persuasive (doc. 15 at 15-21). The undersigned agrees that the ALJ's decision does not adequately address the supportability and consistency of Dr. Stoddard's opinion as required by the regulations in finding that Dr. Stoddard's opinion is partially persuasive. Of note, the ALJ's RFC incorporates a number of Dr. Stoddard's opined limitations, apparently finding unpersuasive Dr. Stoddard's kneeling, crouching, reaching, handling, fingering, and feeling limitations.
As argued by the plaintiff, the ALJ's examination of the supportability and consistency of Dr. Stoddard's opinion comprises a single conclusory sentence noting that Dr. Stoddard's medical records did not include the opined limitations as well as that physical therapy records noted “essentially” a full range of motion (see Tr. 24). However, the ALJ's decision is internally inconsistent, as it appears to have adopted Dr. Stoddard's opinion with respect to lifting/carrying, stooping, crouching, climbing stairs, and changing positions (compare Tr. 1147-48 with T r. 24), even though Dr. Stoddard's medical records also do not include these limitations.
Nevertheless, with respect to the supportability of Dr. Stoddard's opinion regarding the limitations not adopted by the ALJ, the ALJ's vague reference to Dr. Stoddard's records does not address that the plaintiff continually had abnormal physical examination findings when seen at Dr. Stoddard's practice as well as the plaintiff's ongoing treatment for impingements in both shoulders, which persisted despite conservative treatments, requiring multiple shoulder surgeries (see Tr. 423-24, 447, 632-37, 862-63, 868-69, 874, 944-47, 1067-71, 1388-92, 1428-30).
The plaintiff treated mainly with Dr. Stoddard; however, there are some visits that were overseen by Lika J. Schrock, PA-C, at Dr. Stoddard's practice.
For example, during a postoperative appointment on July 6, 2017, the day prior to the plaintiff's alleged onset date, Dr. Stoddard noted that the x-rays showed good decompression with a moderately limited range of motion (“ROM”) and no instability (Tr. 423-24, 447). The plaintiff's remaining appointments in 2017 note consistent abnormal physical examination findings, including decreased ROM, diffuse swelling in the right shoulder, impingement in the left shoulder, positive empty can test, tenderness in the acromion and acromioclavicular (“AC”) joint level, and some crepitus (Tr. 632-37). Moreover, treatment records from December 21, 2017, note that even though the plaintiff had received injections in her shoulders, she continued to have at least mildly positive impingement in both shoulders, tenderness, and a little hypertrophy over the AC joints (T r. 868-69, 874). Subsequent records from Dr. Stoddard, from March 8, 2018, through June 14, 2018, include abnormal examination findings such as a decrease in external rotation and abduction by ten degrees in the left shoulder; tenderness over the anterior acromion subacromial and bicipital space; impingement; limits in both the passive and active ROM; tenderness of the supraspinatus, infraspinatus, subacromial bursa, subdeltoid bursa, axilla, and glenohumeral joint; positive Hawkin's test; positive Neer's test; and positive empty can sign (Tr. 862-63, 944-47, 1067-71).
Additionally, although Dr. Stoddard noted on August 6, 2018, that the plaintiff's shoulders had minimal impingement pain with mild crepitus with circumduction on the left, by May 7, 2019, the plaintiff had lost ten degrees in the external rotation and abduction in her left shoulder with a strongly positive impingement sign, moderate bicipital and subacromial tenderness, as well as slightly limited motion and tenderness over the greater trochanter in the plaintiff's right hip (Tr. 1390-92, 1428-30). Moreover, during visits on February 7, 2019, and April 11, 2019, Dr. Stoddard noted a positive Finkelstein's test in the plaintiff's left wrist, tenderness in the right hip over the greater trochanter, hip flexor muscle tenderness, and limits in both the plaintiff's active and passive ROM secondary to pain (Tr. 1388-90, 1430-32). In light of the foregoing, Dr. Stoddard's records appears to support his opined limitations regarding the plaintiff's ability to reach, handle, finger, feel, kneel, or crouch. Indeed, although the ALJ's decision as a whole contains a summary of the plaintiff's treatment history with Dr. Stoddard, the supportability analysis appears deficient in that it does not address the above positive examination findings during Dr. Stoddard's ongoing treatment of the plaintiff's shoulders.
The ALJ's decision, in passing, also notes that Dr. Stoddard's opinion is only partially persuasive because it is inconsistent with unspecified physical therapy records. Of note, the plaintiff has undergone at least two rounds of physical therapy for her impairments, but it is unclear which physical therapy records the ALJ's decision references. Nevertheless, it appears that the ALJ's decision may reference the plaintiff's most recent physical therapy records, which show a “discharge” date of July 23, 2018. Mary Benedict, PT, indicated in the discharge records that the plaintiff requested an early discharge due to insurance coverage issues. Ms. Benedict noted that the plaintiff had not met her goals, but she would discharge the plaintiff with a comprehensive home exercise program. Ms. Benedict further noted that the plaintiff's ROM was nearly within normal limits, but indicated that the plaintiff had residual discomfort with shoulder flexion near the end of her ROM. The treatment notes further stated that the plaintiff's ability to carry, move, and handle objects is limited or restricted at least 40 percent but less than 60 percent. The plaintiff's shoulder pain and disability index is noted as 45 percent (Tr. 1259-64). As such, although the ALJ's decision is correct that the plaintiff had almost regained a normal ROM (which would appear inconsistent with Dr. Stoddard's limitations), the ALJ's decision does not address the disability findings or the notation that the plaintiff would be at least 40 percent limited in her ability to carry/move/handle objects. Accordingly, the physical therapy records appear in conflict with at least portions of the ALJ's RFC, which undermines the ALJ's reliance on them in finding unpersuasive portions of Dr. Stoddard's opinion.
The plaintiff previously completed physical therapy in August 2017. Discharge records from those physical therapy sessions noted that the plaintiff had right shoulder tenderness/soreness off and on secondary to increased activity, that the plaintiff had partially met short-term goals relating to ROM, and that the plaintiff was discontinuing physical therapy for her shoulder to undergo physical therapy for her neck/back (Tr. 571-72, 586, 594-96).
The Commissioner argues that the ALJ's decision appropriately discounted portions of Dr. Stoddard's opinion because they are inconsistent with the record evidence (doc. 16 at 16-17). However, the ALJ's decision does not reflect a consideration of the consistency of Dr. Stoddard's opinion with respect to other record evidence, including medical treatment records (other than the physical therapy records). For example, since the alleged onset date of July 7, 2017, the plaintiff has sought regular treatment from Rowe Spine and Pain Care (Tr. 879-920, 1008-12, 1081-85, 1113-17, 1175-1202). At Rowe Spine and Pain Care, the plaintiff received regular treatment and bilateral lumbar facet joint injections (which were not effective long-term) from David Rowe, M.D.; Kerri Frey, PA-C; Kristine Germann, PA-C; and Thomas Freeman, PA-C. Examination findings during these visits regularly noted an antalgic gait, decreased lumbar lordosis, severe tenderness overlying the facet joints (both upper and lower lumbar on right and left), tenderness of the paraspinals, diminished patellar reflexes, absent achilles reflexes, active ROM limited secondary to pain, pain with lumbar extension and facet joint loading, and positive seated straight leg raising on the right and left (Tr. 881-82, 886-87, 891-92, 896-901, 904-05, 907-12, 915-20, 1010-11, 1083-84, 1115-16, 1175-78 1181-82, 1186-87, 1191-92, 1196-97, 1201-02). Such examination findings are consistent with Dr. Stoddard's opinion that the plaintiff could never kneel or crouch.
As noted, infra, the Commissioner's arguments regarding consistency (outside of consideration of the physical therapy records by the ALJ) are post hoc rationalizations. See infra p. 13.
Additionally, while treatment records from Bluffton Memorial Hospital and Coastal Empire Mental Health do appear inconsistent with Dr. Stoddard's opinion (noting no abnormal physical examination findings (some records do include abnormal mental status examinations)) (see Tr. 813-14, 1053-54, 1170, 1172, 1240, 1244, 1247, 1250, 1255, 1322-23, 1358, 1378-79, 1399, 1402, 1485), the ALJ's decision does not indicate meaningful consideration of treatment records from Coastal Carolina Medical Center and the Medical University of South Carolina that are consistent with Dr. Stoddard's opinion (noting examination findings such as tenderness to palpation of the right sciatic notch; tenderness over the trocar site; an antalgic gait favoring the right side; right lower lumbar tenderness in the paraspinal region extending to the left side; decreased ROM in the back; and severe distress) (Tr. 744-45, 1052, 1331-32, 1343, 1348).
The Commissioner asserts that any error with respect to Dr. Stoddard's opinions regarding the plaintiff's ability to crouch and kneel would be harmless because one of the jobs identified by the vocational expert did not require crouching or kneeling (doc. 16 at 18). The plaintiff did not file a reply brief addressing this argument. However, even assuming, arguendo, harmless error with respect to Dr. Stoddard's crouching and kneeling limitations, the ALJ's decision still does not appropriately address the reaching, handling, fingering, and feeling limitations opined by Dr. Stoddard. Those limitations are, in and of themselves, outcome determinative, especially in light of the vocational expert's testimony that the plaintiff could not do any of the identified jobs if she was limited to occasional reaching or handling (see Tr. 52).
The Commissioner also argues that the ALJ appropriately assessed the persuasiveness of Dr. Stoddard's opinion because Dr. Stoddard's opinion does not reference specific objective findings (other than the plaintiff's recent surgery) as well as because the ALJ considered the opinion for the entire relevant period (instead of from May 10, 2018) (doc. 16 at 15-17). However, these arguments by the Commissioner do not appear in the ALJ's decision; thus they are post hoc rationalizations, which cannot be considered in undertaking substantial evidence review. See Moseley v. Berryhill, C/A No. 6:18-cv-01389-BHH-KFM, 2019 WL 2107917, at *10 (D.S.C. Apr. 22, 2019), Report and Recommendation adopted by 2019 WL 2106181 (D.S.C. May 14, 2019) (“[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.” (quoting Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003))).
Although the ALJ retains the authority to weigh medical opinions, it is legally insufficient for the ALJ's decision to recite some facts, ignore others, and make conclusory statements in evaluating the persuasiveness of opinion evidence. “A necessary predicate to engaging in substantial evidence review is a record” that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D. N.C. Apr. 2, 2015) (requiring that the ALJ “build a logical bridge between the evidence and his conclusions”) (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Accordingly, this case should be remanded so that the ALJ may properly weigh Dr. Stoddard's medical opinion under the applicable standards and explain the persuasiveness of Dr. Stoddard's opinion.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, on remand, the ALJ is to also take into consideration the plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 300 East Washington Street Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).