Opinion
C/A No. 2:18-cv-01579-CMC-MGB
07-26-2019
LISA STACY, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff Lisa Stacy ("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 Administration (the "Administration") regarding her claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 45 years old on her alleged disability onset date of April 18, 2014. (R. at 15, 30, 76, 89.) Plaintiff alleged disability due to, inter alia, spinal stenosis; spinal fusion; asthma; and arthritis. (Id. at 76, 89.) Plaintiff has past relevant work as an administrative assistant and mailroom supervisor. (Id. at 29-30, 65; Dkt. No. 13 at 4.)
Plaintiff filed an application for DIB on July 7, 2014. (R. at 15; Dkt. No. 13 at 4.) Her application was denied initially on October 7, 2014, and on reconsideration on January 7, 2015. (R. at 15, 88, 102.) A hearing was held on January 4, 2017, before an Administrative Law Judge (the "ALJ"). (Id. at 38-73.) On April 27, 2017, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 15-32.) The Appeals Council denied Plaintiff's request for review on April 16, 2018, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 1-3.)
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ's decision:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
(2) The claimant has not engaged in substantial gainful activity since April 18, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease of the lumbar spine, status-post L4-S1 fusion, degenerative joint disease of the bilateral hands, and asthma (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity, over the course of an eight-hour workday, in two-hour increments, with normal and acceptable work breaks, to perform work at the light exertional level as defined in 20 CFR 404.1567(b), except standing and walking combined can be performed for four hours out of an eight-hour workday. Sitting can be performed for six hours out of an eight-hour workday. The claimant can occasionally crawl and climb ladders, ropes, and scaffolds. She can occasionally stoop to lift, within the exertional level, from the floor to the waist, and can frequently stoop to lift within the exertional level from waist height and above. The claimant can frequently balance, kneel, crouch, and climb ramps and stairs. Bilateral handling and fingering can be performed frequently. The claimant can tolerate occasional exposure to
extreme cold, pulmonary irritants (such as fumes, smoke, odors, dust, gases and poor ventilation), and work place hazards associated with unprotected dangerous machinery or unprotected heights. She can concentrate, persist, and maintain pace to understand, remember and carry out simple, routine tasks, in a low-stress environment (defined as being free of fast-paced or team-dependent production requirements), involving simple, work-related decisions, occasional independent judgment skills, and occasional work place changes.(Id. at 17-32.)
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on October 12, 1968 and was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from April 18, 2014, through the date of this decision (20 CFR 404.1520(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). "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. See 42 U.S.C. § 423(d)(1)(A).
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 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 her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant—considering her age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 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) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (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]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
On appeal, Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of her disability claim. First, Plaintiff argues that the ALJ committed reversible error by improperly evaluating the medical opinions of Plaintiff's treating physicians, Dr. Jeffrey P. Smith, M.D. (pain management specialist), and Dr. Phillip G. Esce, M.D. (neurosurgeon). (Dkt. No. 13 at 15-23.) Second, Plaintiff contends that the ALJ erred in his analysis of Plaintiff's residual functional capacity ("RFC") because he failed to explain how he reached the limitation of occasionally stooping to lift from the floor to the waist, and frequently stooping to lift from waist height and above. (Id. at 23-24.) More specifically, Plaintiff claims that the vocational expert's testimony regarding the stooping limitation was internally inconsistent and that the ALJ failed to explain how he resolved this inconsistency in reaching Plaintiff's RFC. (Id.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned finds that the ALJ's analysis of the aforementioned medical opinions falls short of the clearly established standards of the Treating Physician Rule. At the very least, the ALJ failed to adequately explain the weight assigned to the opinions of Plaintiff's treating physician, Dr. Smith, thereby precluding meaningful review of the ALJ's decision. For the reasons set forth below, this matter should be remanded for further consideration and analysis by the Commissioner.
I. Treating Physician Opinions
Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. § 404.1545; see also 20 C.F.R. § 404.1527. The regulation, known as the "Treating Physician Rule," imposes a duty on the Commissioner to "evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(c)(2).
The "Treating Physician Rule" applies only to claims filed before March 27, 2017. See 20 C.F.R. § 404.1527(c); see also Cohen v. Berryhill, No. 2:16-CV-01238-RMG-MGB, 2017 WL 3638229, at *5 (D.S.C. July 31, 2017), adopted, No. 2:16-CV-1238-RMG, 2017 WL 3476738 (D.S.C. Aug. 14, 2017), and adopted, 272 F. Supp. 3d 779 (D.S.C. 2017).
Under some circumstances, the opinions of treating physicians are to be accorded controlling weight. See id. (stating that the opinion of a treating physician is given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record"). However, even where the opinions of the claimant's treating physicians are not accorded controlling weight, the Commissioner is still obligated to weigh those opinions in light of a broad range of factors, including the examining relationship; the length, nature and extent of the treatment relationship; supportability of the opinions in the medical record; consistency; medical specialization by physician; and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(1)-(5). "A treating physician is entitled to great weight because it reflects a judgment based on continuing observation over a number of years." Campbell v. Bowen, 800 F.2d 1247, 1250 (4th Cir. 1986). Accordingly, the Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5; see also 20 CFR § 404.1527(c)(2); Hendrix v. Astrue, No. 1:09-CV-1283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010) (noting that although "an express discussion of each factor is not required," the ALJ must demonstrate that he applied the relevant factors in evaluating the opinion and provide good reasons for his decision).
A. Dr. Smith's State of South Carolina Form, August 2013
On August 16, 2013, Plaintiff's treating physician, Dr. Smith, completed a State of South Carolina form for attending physicians in relation to Plaintiff's application for long-term disability benefits ("2013 Opinion"). (R. at 397.) Specifically, Dr. Smith diagnosed Plaintiff with lumbosacral neuritis, noting that Plaintiff experienced weakness and pain in her left lower extremities and that an MRI showed scar tissue around Plaintiff's S1 nerve root. (Id.) Dr. Smith further noted that Plaintiff's treatment plan included surgery, physical therapy, and pain management. (Id.) Based on the above, Dr. Smith opined that Plaintiff could frequently lift ten pounds and occasionally reach and grasp with her bilateral upper extremities. (Id. at 398.)
In evaluating this 2013 Opinion, the ALJ gave "only some weight" to Dr. Smith's recommended limitations:
His opinions are rendered less persuasive, as they are on a checkbox form that is difficult to read, and precede the alleged onset date by eight months. The undersigned finds the concurrent and subsequent treatment reports and examination findings to be more informative and persuasive.(Id. at 25.) As the Commissioner correctly notes, Plaintiff's brief does not expressly challenge the ALJ's evaluation of the 2013 Opinion. (Dkt. No. 15 at 15 n.6.) However, Plaintiff seems to argue that her discussion regarding the ALJ's general treatment of Dr. Smith's medical opinions encompasses the State of South Carolina form. (Dkt. No. 16 at 6.) Thus, in an abundance of caution, the undersigned addresses the ALJ's evaluation of the 2013 Opinion herein.
As stated above, the ALJ accorded Dr. Smith's 2013 Opinion limited weight because (1) the opinion was on a check-the-box form and (2) the opinion preceded Plaintiff's alleged disability onset date of April 18, 2014. (R. at 25.) Under certain circumstances, "the force of a medical opinion may be diminished when it is offered on a check-the-box form," particularly where the physician provides little to no supporting explanation for the conclusions reached. Jones v. Colvin, No. 0:12-CV-1773-MGL, 2013 WL 4823174, at *5 (D.S.C. Sept. 9, 2013); see also Ratchford v. Colvin, No. 2:14-CV-707-MGL-MGB, 2015 WL 5813373, at *9 (D.S.C. Sept. 29, 2015) (affirming limited weight given to check-the-box medical opinions that contained "little substantive detail"). Accordingly, the undersigned agrees that Dr. Smith's 2013 Opinion may have been entitled to less weight based on its more limited format.
Even more persuasive, however, is the fact that the 2013 Opinion predates Plaintiff's alleged disability onset date and the relevant time period for possible disability benefits. See, e.g., Frasier v. Colvin, No. 9:12-CV-01947-DCN, 2014 WL 526400, at *4 (D.S.C. Feb. 10, 2014) (affirming limited weight accorded to examining physician's opinion in part because it preceded plaintiff's alleged disability onset date); Berry v. Colvin, No. 3:12-CV-2488-CMC, 2013 WL 5739024, at *14 (D.S.C. Oct. 22, 2013) (finding that the ALJ properly discounted treating physician opinion because it pertained to the period before the amended alleged disability onset date). Thus, to the extent Plaintiff intended to challenge the ALJ's evaluation of Dr. Smith's 2013 Opinion, the undersigned finds that the ALJ's decision to afford Dr. Smith's recommended limitations "only some weight" was supported by substantial evidence and does not provide a viable ground for remand.
B. Dr. Smith's Questionnaire, June 2015
On June 25, 2015, Dr. Smith completed a second opinion in the form of a questionnaire drafted by Plaintiff's attorney ("2015 Opinion"). (R. at 334-35.) Dr. Smith diagnosed Plaintiff with chronic pain syndrome, post-laminectomy syndrome, lumbar radiculopathy, lumbar degenerative disc disease, lumbar spondylosis and opioid dependence, and opined that Plaintiff could not "engage in anything more than sedentary work." (Id. at 334.) More specifically, Dr. Smith noted that if Plaintiff attempted to work eight (8) hours per day, five (5) days per week, she would "most probably have to rest away from the work station for significantly more than an hour during the working portion of the day," and that "it is most probable that [Plaintiff] would have problems with attention to and concentration sufficient to frequently interrupt tasks during the working portion of the work day." (Id.) Dr. Smith found that Plaintiff had been impaired at this level since February 20, 2013, basing his opinion in part on Plaintiff's spinal fusion surgery in 2008 and a subsequent MRI showing epidural fibrosis around Plaintiff's L5-S1 nerve root. (Id. at 334-35.) Dr. Smith included an additional note at the end of the questionnaire, stating that "[t]he patient has an excellent work history with approximately 24 years employment with the prison system. She continued to try to work but was struggling throughout. Symptoms have become too severe to continue gainful employment." (Id. at 335.)
The questionnaire defined "sedentary work" as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.(R. at 334.)
The ALJ gave Dr. Smith's 2015 Opinion "limited weight . . . only to the extent it is consistent with the balance of the medical evidence." In support of this conclusion, the ALJ explained:
[T]his opinion was rendered on a form manufactured and pre-worded by the attorney, involving options which appeared designed to only lead to a finding of disability. The claimant's attorney pre-worded opinion statements, and qualifiers such as "most probable", render such statements mere speculation, and not an opinion regarding the claimant's actual functional limitations. Dr. Smith's additional narrative regarding the claimant's work history was considered and found to be consistent with the record. However, the undersigned notes opinions regarding the ability to sustain gainful employment are reserved to the Commissioner.(Id. at 27.) For the reasons set forth below, the undersigned finds this explanation insufficient to allow for meaningful review and, therefore, cannot conclude with confidence that the ALJ's decision to give limited weight to Dr. Smith's 2015 Opinion was supported by substantial evidence.
First, although the weight of a physician's medical opinion may be diminished when presented in a check-the-box format, (supra pp. 8-9), the fact that an opinion was arranged by an attorney and "presented in a leading format" is not sufficient, without more, to discount an examining physician's medical opinion. Jones, 2013 WL 4823174, at *5; see also Jordan v. Colvin, No. 8:12-CV-01676-DCN, 2013 WL 5317334, at *7 (D.S.C. Sept. 20, 2013) (noting that the purpose for which medical reports are obtained, including an attorney referral for a disability claim, does not provide a legitimate basis for rejecting them). Accordingly, the fact that Plaintiff's attorney drafted the questions to which Dr. Smith provided his responses in support of Plaintiff's disability claim "does not constitute persuasive contrary evidence" sufficient to reject the 2015 Opinion. Jones, 2013 WL 4823174, at *5.
Second, the Court is unconvinced that the use of qualifying terms ("probable" and "probably") rendered Dr. Smith's 2015 Opinion "mere speculation." (R. at 27.) Indeed, while the questionnaire included qualifying terms with respect to certain physical restrictions, Dr. Smith's ultimate opinion that Plaintiff's impairments limited her to sedentary work was stated definitively and without conditional language. (See id. at 334.) See Smith v. Berryhill, No. 1:17-CV-1887-JMC-SVH, 2018 WL 2344540, at *20 (D.S.C. Mar. 23, 2018), adopted, No. 1:17-CV-01887-JMC, 2018 WL 2332074 (D.S.C. May 22, 2018) (finding that physician's opinion was not so vague as to deprive the ALJ or the court of his impression as to plaintiff's limitations).
Further, the undersigned notes that it is the ALJ's responsibility to develop a full and fair record, and to correct any significant gaps or deficiencies in the record. Chaney v. Saul, No. 2:18-CV-01197-MGL-MGB, 2019 WL 3307108, at *9 (D.S.C. July 2, 2019), adopted sub nom. No. 2:18-CV-1197-MGL, 2019 WL 3306106 (D.S.C. July 22, 2019). To the extent the ALJ found Dr. Smith's 2015 Opinion vague, he could have contacted Dr. Smith for clarification. See id. (instructing the ALJ to recontact physician on remand to gain better understanding of "vague" opinion).
Finally, the ALJ seemed to discount Dr. Smith's statement that Plaintiff was no longer able to sustain gainful employment because such conclusions are administrative findings, rather than medical opinions, reserved to the Commissioner. (R. at 27; see also Dkt. No. 15 at 13-15.) It is well-established that determinations of disability are findings reserved to the Commissioner. 20 C.F.R. § 404.1527(d); see also Patterson v. Colvin, No. 4:14-CV-0041 DCN, 2015 WL 450477, at *9 (D.S.C. Feb. 3, 2015) (noting that the questions of whether a claimant is unable able to work, is disabled, or can perform at a certain residual functional capacity level are issues reserved to the Commissioner). However, while treating source opinions on issues reserved to the Commissioner are not entitled to special significance, the adjudicator is still obligated to "evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record." Patterson, 2015 WL 450477, at *9; see also SSR 96-5P, 1996 WL 374183, at *1 ("[O]pinions from any medical source about issues reserved to the Commissioner must never be ignored, and . . . the notice of the determination or decision must explain the consideration given to the treating source's opinion(s).") Accordingly, even if a physician's opinion addresses an issue reserved to the Commissioner, such as the 2015 Opinion, the ALJ must nonetheless consider that opinion in light of the record and adequately explain the weight assigned to the opinion in accordance with the applicable regulations. See McGraw v. Colvin, No. 8:14-CV-03208-RMG-JDA, 2015 WL 13215548, at *14 (D.S.C. Nov. 13, 2015), adopted, No. 8:14-CV-3208-RMG, 2015 WL 7306429 (D.S.C. Nov. 19, 2015) (remanding matter for further consideration because, while the ALJ was not required to give special significance to the doctor's opinion regarding whether plaintiff could only perform sedentary work, the ALJ was still required to adequately explain his consideration of and the weight assigned to said opinion).
Here, the undersigned finds that the ALJ's explanation fell short of this obligation. Indeed, aside from the leading nature of the questionnaire and the qualifying language used therein—which, as discussed above, are questionable reasons at best—the ALJ provides little substantive explanation or support from the record regarding his decision to give Dr. Smith's conclusions limited weight. The Commissioner attempts to bolster the ALJ's explanation by referencing purported inconsistencies between the 2015 Opinion and Plaintiff's medical record, including an MRI of Plaintiff's lumbar spine, which revealed no significant alignment abnormalities; normal musculoskeletal examinations; and a conservative treatment regimen, which included prescription therapy and injections that controlled Plaintiff's pain. (Dkt. No. 15 at 14-15.) As discussed in greater detail below, however, any such inconsistencies are impermissible post hoc rationalizations and cannot remedy the ALJ's deficient explanation.
See Klein v. Colvin, No. 2:14-CV-2045 DCN, 2015 WL 4937349, at *7 (D.S.C. Aug. 17, 2015) (citing Bray v. Comm'r, 554 F.3d 1219, 1225 (9th Cir. 2009), for the proposition that "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking"); see also Seymore v. Calvin, No. 9:16-CV-0660-RMG-BM, 2017 WL 1277691, at *8 (D.S.C. Mar. 9, 2017), adopted sub nom. Seymore v. Berryhill, No. 9:16-CV-660-RMG, 2017 WL 1274027 (D.S.C. Apr. 4, 2017) ("[A]lthough the Commissioner offers additional arguments as to why she believes that the treating physician opinions are not supported . . . these arguments are only post hoc rationalization for upholding the decision, since this evidence is not the basis for discounting these opinions stated by the ALJ in his decision."); SSR 96-2p, 1996 WL 374188, at *5 (noting that the ALJ's decision itself "must contain specific reasons for the weight given to the treating source's medical opinion).
While the ALJ's decision provides a thorough review of Plaintiff's medical history, including some of the above evidence referenced by the Commissioner, the ALJ did not cite to any of these examples in his evaluation of Dr. Smith's 2015 Opinion. To the contrary, the ALJ failed to cite any contradictory medical evidence whatsoever in discounting the 2015 Opinion. (See R. at 27.) Rather, he offered only the vague statement that Dr. Smith's 2015 Opinion deserved limited weight, "to the extent it is consistent with the balance of the medical evidence." (Id.) The Court addressed a similar conclusory statement in Jordan v. Colvin, in which the ALJ accorded little weight to a treating physician's medical opinion because "the opinion [was] not consistent with the longitudinal record." See 2013 WL 5317334, at *7 ("That brief statement is both the beginning and the end of the ALJ's inconsistency analysis.") The district court noted that while the ALJ had included a detailed review elsewhere in her decision of the plaintiff's medical history—which revealed potential inconsistencies with the medical opinion at issue— her "cursory discussion" of the weight assigned to the physician's opinion failed to mention any such evidence and, consequently, provided "inadequate information to accommodate a thorough review." Id. at *8. Accordingly, this type of conclusory statement does not satisfy the ALJ's obligation to show sufficiently specific "good reasons" for the weight given to a treating source's medical opinion. SSR 96-2P, 1996 WL 374188, at *5.
Here, the ALJ's cursory discussion of the 2015 Opinion is particularly inadequate because his overall decision appeared to rely largely on Dr. Smith's treatment notes. (R. at 22-25, 27-28.) Indeed, the ALJ seemed to credit the treatment notes as valid evidence in his review of Plaintiff's medical history, and yet gave little weight to the opinion Dr. Smith derived from this very treatment of Plaintiff. (Id. at 27, 29.) The ALJ's failure to bridge the gap between his acceptance of Dr. Smith's treatment notes and his simultaneous rejection of the 2015 Opinion leaves the Court guessing as to how the ALJ arrived at his decision to afford limited weight to Dr. Smith's 2015 Opinion and which parts of the opinion, if any, were given particular weight. See Williams v. Berryhill, No. 0:17-CV-1203-DCC-PJG, 2018 WL 4560530, at *4 (D.S.C. May 15, 2018), adopted, No. 0:17-CV-1203-DCC, 2018 WL 3569076 (D.S.C. July 25, 2018) (remanding where ALJ offered no explanation as to how physician's opined limitations were unsupported by the record and, as a result, the court was "left to guess" at how the ALJ arrived at his conclusions regarding the opinion evidence).
The undersigned cautions that an ALJ may not substitute his own opinion for that of an expert. See Sheppard v. Colvin, No. 5:13-CV-1027-RMG, 2014 WL 3110063, at *3 (D.S.C. July 7, 2014) (noting that while an ALJ may resolve issues of credibility as to lay testimony or choose between properly submitted medical opinions, he may not set his own expertise against that of a physician). Thus, it is especially important that the ALJ in the instant case explain his reasoning for discounting Dr. Smith's opinion given that his treatment notes make up a significant portion of the medical record.
Moreover, notwithstanding potential inconsistencies in the record, Dr. Smith is still entitled to a certain level of deference as a treating physician:
[A] finding that a treating source medical opinion is not well supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to "controlling weight," not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. 404.1527 and 416.927. In many cases, a treating source's opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.See McGraw, 2015 WL 13215548, at *13 (referencing SSR 96-2P). It is unclear from the ALJ's decision if he considered the factors outlined in 20 C.F.R. § 404.1527 in his evaluation of Dr. Smith's 2015 Opinion. Specifically, the ALJ did not explain how he considered Dr. Smith's long-standing treatment relationship with Plaintiff, which spanned from at least August 13, 2013, to November 30, 2016. (R. at 22-25, 27.) The ALJ also failed to explain how he accounted for Dr. Smith's specialized knowledge in pain management and rehabilitation, if at all. (Id. at 27, 355). See, e.g., Kneece v. Colvin, No. 5:12-CV-2637-TMC, 2014 WL 368586, at *15 (D.S.C. Feb. 3, 2014) (finding that, although the ALJ discussed the physician's treatment of the plaintiff in Step Two of his evaluation, remand was necessary because he made no reference to the physician's long treatment history with the plaintiff or his specialized knowledge with regard to the plaintiff's pain symptoms in assigning weight to the medical opinion); Hodge v. Colvin, No. 8:15-CV-00440-JMC-JDA, 2016 WL 4238646, at *17 (D.S.C. July 8, 2016), adopted, No. 8:15-CV-440-JMC, 2016 WL 4196670 (D.S.C. Aug. 8, 2016) (remanding where ALJ failed to address that physician had known the plaintiff for years and was a specialist in the area of psychiatry). Additionally, the ALJ did not address the fact that Dr. Smith's 2015 Opinion was consistent with that of Dr. Esce, Plaintiff's neurosurgeon. See Jordan, 2013 WL 5317334, at *8 (explaining that the court could not divine how the physician's medical opinion was inconsistent with the longitudinal record without further analysis, especially where there were examining doctors who appeared to provide consistent opinions); see also Thomas v. Colvin, No. 2:14-CV-383-RMG, 2015 WL 1909903, at *6-7 (D.S.C. Apr. 27, 2015) (finding that the rejection of treating physicians' opinions was not supported by substantial evidence where opinions were largely dismissed "without reference to the standards of the Treating Physician Rule").
As noted below, Dr. Smith defined his specialization as "physical medicine and rehabilitation." (Infra p. 17.)
In September 2014, Dr. Esce completed a questionnaire identical to that completed by Dr. Smith. (R. at 300-01.) Dr. Esce diagnosed Plaintiff with lumbar disc disease and spinal fusion, and opined that Plaintiff could not "engage in anything more than sedentary work." (Id. at 300.) Dr. Esce based his opinion on Plaintiff's reliance on narcotic medication, her chronic low back pain, and leg pain that could impair her gait and movement. (Id.) The only noticeable difference between Dr. Esce's opinion and the 2015 Opinion was Dr. Esce's conclusion that Plaintiff had been impaired at this level since 2008. (Id. at 301.)
Without further explanation from the ALJ, the undersigned simply cannot conclude that the ALJ's decision to afford Dr. Smith's 2015 Opinion limited weight was supported by substantial evidence. Although the Commissioner raises several colorable arguments in favor of the ALJ's position, such arguments must be articulated by the ALJ in order to allow for meaningful review. Moreover, the ALJ must demonstrate that he considered the relevant factors under 20 C.F.R. § 404.1527 in discounting a treating physician's opinion. See Alexander v. Colvin, No. 9:14-CV-2194-MGL-BM, 2015 WL 2399846, at *6 (D.S.C. May 19, 2015) ("Thus, although the ALJ may have properly considered the relevant factors and may have had appropriate reasons in discounting the physicians' opinions (as the Commissioner argues in his objections), . . . the ALJ must be more specific when discounting a treating physician's opinion."); see also Klein v. Colvin, No. 2:14-CV-2045 DCN, 2015 WL 4937349, at *7 (D.S.C. Aug. 17, 2015) (remanding where ALJ failed to provide "good reasons" for her rejection of treating physician's opinion and the reasons presented by the Commissioner were post hoc rationalizations). While the ALJ may still choose to reject Dr. Smith's 2015 Opinion on remand, "that is not a decision that can be made by this Court in the first instance on appellate review." Alexander, 2015 WL 2399846, at *6. To rule otherwise would require the Court to weigh the evidence and substitute its own judgment for that of the ALJ, which it may not do. Accordingly, the undersigned recommends that this matter be remanded for further consideration and explanation by the ALJ so that the Court may undertake a meaningful review as to whether the ALJ's decision was supported by substantial evidence.
C. Dr. Smith's Letter, March 2016
Although the undersigned finds the ALJ's treatment of Dr. Smith's 2015 Opinion sufficient to warrant remand, it is worth noting that the ALJ's evaluation of Dr. Smith's subsequent opinion, a letter dated March 29, 2016 ("2016 Opinion"), also demonstrates reversible error. Specifically, Dr. Smith stated,
Indeed, the undersigned finds the 2016 Opinion even more compelling, as it provides greater detail and context with respect to Dr. Smith's conclusions.
I specialize in physical medicine and rehabilitation. I first treated Lisa S. Stacy on 2/20/13 and I last saw her on 2/24/16. She suffers from chronic lumbar radiculopathy and chronic low back pain with a history of L4-S1 lumbar fusion in 2008. She subsequently developed some scar tissue around the right L5-S1 nerve root. That scar tissue, which is evident on MRI imaging, is causing her chronic lumbar radiculopathy. She has decreased sensation on the posterior aspect of her right leg going down the foot in the L5-S1 distribution. In the past, injections have provided her with some temporary relief. We treat her primarily with medications.(R. at 355.)
Based on her MRI imaging and consistent clinical examination, Ms. Stacy would not be able to perform anything more than sedentary work due to her leg pain. At a sedentary job, it is most probable she would need to change position between sitting and standing/walking more often than every 30 minutes. When I see her in the office she appears uncomfortable and shifts her weight often, and that is consistent with her condition. I was asked how many hours total she would be able to sit in an 8 hour work day. Even with shifting positions, she could not sit more than 3-4 hours total out of an 8 hour work day. She has had these limitations throughout the time period I have treated her. She was working at the [sic] one of the local prisons for years and we tried to keep her working as long as we could. She tried her best to stay at that job.
The ALJ gave "only partial weight" to Dr. Smith's 2016 Opinion, explaining that,
The document and corresponding opinions appear to have been drafted by claimant's attorney and submitted to the doctor for signature. Lesser weight is given to Dr. Smith's speculation that claimant would need to change positions between sitting, standing, or walking more than every thirty minutes. Observations regarding the claimant's positional demeanor are not reflected in his treatment reports, or in other evidence in the file. The undersigned notes an inability to perform past work is not synonymous with the inability to perform all work.(Id. at 28.) The undersigned is compelled to agree with Plaintiff that the ALJ's explanation once again fell short of the standards under the Treating Physician Rule.
As an initial matter, the undersigned finds nothing in the record to confirm the ALJ's allegation that Dr. Smith did not write, or at the very least contribute to, the 2016 Opinion. Regardless, even if Plaintiff's attorney was involved in the drafting of the 2016 Opinion, this fact alone "does not constitute persuasive contrary evidence" sufficient to summarily reject the 2016 Opinion. Jones, 2013 WL 4823174, at *5. (See supra p. 11.) The only other substantive reason offered by the ALJ in his explanation of the weight accorded to the 2016 Opinion is that Plaintiff's need to shift positions frequently was not documented in Dr. Smith's treatment notes or any other medical evidence of record. (R. at 28.) However, while there must be objective medical evidence in the record of some condition that could reasonably produce the pain or symptoms experienced by Plaintiff, "there need not be objective evidence of the pain itself or its intensity." Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006); see also Fletcher v. Colvin, No. 0:12-CV-02888-DCN, 2014 WL 1252913, at *8 (D.S.C. Mar. 26, 2014) (finding that ALJ's rejection of the physician's opinion was not supported by substantial evidence because the decision was improperly based on lack of specific notation in the treatment records reflecting claimant's need to elevate his legs, and nothing in the treatment notes undermined the physician's opinion that elevation of legs was necessary).
Notwithstanding the ALJ's assessment of the record, the undersigned notes that there is in fact objective evidence of Plaintiff's discomfort and pain, as MRI imaging shows scar tissue around Plaintiff's S1 nerve root. (R. at 355.)
The Commissioner attempts to bolster the ALJ's explanation by couching the ALJ's limited statement regarding Plaintiff's positional demeanor as a general declaration of inconsistency, providing additional examples of evidence from the medical record that purportedly contradict Dr. Smith's 2016 Opinion. (Dkt. No. 15 at 15-17.) However, similar to the 2015 Opinion, the ALJ did not expressly raise the argument that Dr. Smith's 2016 Opinion was internally inconsistent with his own treatment notes or generally contradicted by the medical record as a whole. Rather, the ALJ noted only that Dr. Smith's specific observations regarding Plaintiff's positional demeanor were not reflected in the record. (R. at 28.) Accordingly, the Court simply cannot consider the Commissioner's post hoc examples of potential inconsistencies in assessing whether the ALJ's decision was supported by substantial evidence. See, e.g., Franks v. Astrue, No. 3:09-CV-1012, 2010 WL 3878832, at *10 (D.S.C. Aug. 31, 2010), adopted, No. 3:09-CV-1012-SB, 2010 WL 3842594 (D.S.C. Sept. 24, 2010) (noting that, although the Commissioner cited examples of the physician's own treatment notes contradicting his opinion, these inconsistencies were not articulated by the ALJ in his evaluation of the opinion and, therefore, were not considered in the court's analysis of whether the ALJ's decision was supported by substantial evidence); Russell v. Comm'r of Soc. Sec., No. 9:17-CV-00040-JMC-BM, 2018 WL 704369, at *7 (D.S.C. Jan. 12, 2018), adopted sub nom. Russell v. Berryhill, No. 9:17-CV-00040-JMC, 2018 WL 690068 (D.S.C. Feb. 1, 2018) (finding that the Commissioner's argument—that physician's opinion was inconsistent with treatment notes—was a post hoc rationalization for upholding the decision because ALJ "did not actually herself discuss or make these findings in her decision").
Moreover, even if Dr. Smith's conclusions regarding Plaintiff's positional demeanor are in fact inconsistent with or contradicted by other medical evidence of record, Dr. Smith is still entitled to deference as Plaintiff's treating physician. Indeed, as discussed at length above, the ALJ is obligated to weigh Dr. Smith's conclusions in light of the factors provided in 20 C.F.R. 404.1527. (See supra pp. 14-16.) See also Hendrix, 2010 WL 3448624, at *3 (noting that although "an express discussion of each factor is not required," the ALJ must demonstrate that he applied the relevant factors in evaluating the opinion and provide good reasons for his decision). As with Dr. Smith's 2015 Opinion, it is not clear from the ALJ's explanation whether he considered Dr. Smith's treatment relationship with Plaintiff, his specialization in pain management, or the consistency of his conclusions with those provided by Dr. Esce in affording the 2016 Opinion only partial weight; it is equally unclear as to which parts of Dr. Smith's 2016 Opinion were afforded weight by the ALJ, and which parts, if any, were discounted entirely. Accordingly, the undersigned recommends that this matter be remanded to the Commissioner so that, at the very least, he can provide a more specific explanation regarding his consideration of and the weight afforded to Dr. Smith's 2016 Opinion. Without further analysis, the Court simply cannot engage in a meaningful review as to whether the ALJ's decision was supported by substantial evidence. See Alexander, 2015 WL 2399846, at *6 (remanding where ALJ failed to provide a sufficiently specific explanation or "good reasons" for his rejection of treating physician's opinion, thereby precluding the court's meaningful review).
II. Remaining Allegations of Error
The undersigned finds the ALJ's inadequate analysis of the aforementioned medical opinions to be a sufficient basis on which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error, including the ALJ's evaluation of Dr. Esce's opinion, as well as the ALJ's alleged failure to explain his determination regarding Plaintiff's ability to stoop in the context of her RFC. (Dkt. No. 13 at 16-17, 23-24.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 26, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).