Opinion
C. A. 9:23-cv-04752-JDA-MHC
07-30-2024
Stephen C.,[1] Plaintiff, v. Martin O'Malley,[2] Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States-Magistrate Judge
Plaintiff Stephen C. (Plaintiff) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for Disability Insurance Benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 8.
Plaintiff applied for DIB under Title II of the Act in December 2018, alleging he was disabled as of August 24, 2012. R.pp. 17, 175, 406-07. After Plaintiff's application was denied at the initial and reconsideration levels of review, he requested a hearing R.pp. 149-56, 157-71,21516. Plaintiff, who was represented by counsel, testified at a video conference hearing in August 2021, as did an impartial vocational expert. R.pp. 98-148. On September 16, 2021, an ALJ found that Plaintiff was not disabled between August 24, 2012 (the alleged onset date), through December 31, 2017, the date last insured. R.pp. 175-90.
Plaintiff sought review of the ALJ's decision by the Appeals Council. R.p. 334, 338-44. The Appeals Council granted Plaintiff's request for review, then remanded for further consideration of Plaintiff's maximum residual functional capacity to include further evaluation of a medical opinion submitted by Eric Grahling, M.D. R.pp. 198-99. On remand, the ALJ held a new hearing on September 7, 2022, at which Plaintiff (represented by counsel), and a new vocational expert testified. R.pp. 42-96. On October 28, 2022, the ALJ issued an unfavorable decision. R.pp. 17-33. The Appeals Council denied Plaintiff's request for review. R.pp. 1-3. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled from the alleged onset date of August 24, 2012. R.pp. 17-33. The ALJ found, in pertinent part:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2017.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of August 24, 2012, through his date last insured of December 31, 2017 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease and degenerative joint disease left upper extremity (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the claimant could never climb ladders, ropes, or scaffolds. The claimant could occasionally climb ramps and stairs. The claimant could frequently, but not constantly, stoop. The claimant could frequently, but not constantly, reach overhead with the left upper extremity.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born [in August 1961] and was 56 years old, which is defined as an individual closely approaching advanced age, on the date last insured. The claimant subsequently changed age category to advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. The claimant has acquired work skills from past relevant work (20 CFR 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569a and 404.1568(d)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 24, 2012, the alleged onset date, through December 31, 2017, the date last insured (20 CFR 404.1520(g)).R.pp. 19-33.
IV. DISCUSSION
Plaintiff argues the ALJ erred for three reasons. First, he argues the ALJ failed to properly evaluate medical opinion evidence. ECF No. 11 at 15-18. Second, Plaintiff argues the ALJ did not properly evaluate his subjective complaints. ECF No. 11 at 18-20. Third, he maintains the ALJ's findings at step five of the sequential evaluation process were not supported by substantial evidence. ECF No. 11 at 20-21. For the reasons that follow, Plaintiff has not shown remand is warranted.
A. Medical opinion evidence
Effective March 27, 2017, numerous social security regulations and social security rulings (SSRs) were amended or superseded, making the new regulations applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017), corrected by 82 Fed.Reg. 15132-01, 2017 WL 1105368 (Mar. 27, 2017). Because Plaintiff's claim for benefits was filed after March 27, 2017, the ALJ was required to evaluate the application under 20 C.F.R. §§ 404.1520c and 416.920c.
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Under the new regulations, the ALJ is not to defer to or give any specific weight to medical opinions based on their source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, ALJs are instructed to consider and evaluate the persuasiveness of the opinion evidence by considering the following factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Supportability and consistency are the most important factors to consider, and an ALJ must explain how these factors are considered in the determination or decision. See 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ may, but is not required to, explain how the other factors are considered. 20 C.F.R. §§ 404.1520c(b)(2), (c), 416.920c(b)(2), (c).
This effectively does away with the so called “Treating Physician Rule” under the provisions of 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), whereby an ALJ was directed to give controlling weight to the opinion of a treating physician if it was well supported by medically-acceptable clinical and laboratory diagnostic techniques and was not inconsistent with the other substantial evidence of record. In addition, 20 C.F.R. §§ 404.1527(c)(5) and 416.927(c)(5) provided that ALJs should “generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a medical source who is not a specialist.”
This represents another significant departure from the requirements of 20 C.F.R. §§ 404.1527(c) and 416.927(c), whereby, if the ALJ declined to accord controlling weight to the treating physician's opinion, he was to weigh the medical opinions of record based on all of the following factors: (1) examining relationship; (2) treating relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors that tended to support or contradict the opinion.
The supportability factor looks inward-directing an ALJ to examine: (1) the extent to which the objective medical evidence presented by the medical source supports that medical source's opinion; and (2) whether the medical source supports the opinion with explanation. Conversely, the consistency factor looks outward-directing an ALJ to evaluate a medical source's opinion in comparison to other evidence in the record. Put differently, the ALJ's analysis considers whether the medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
In evaluating the supportability factor, “[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) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). “Supportability” denotes “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5853, 2017 WL 168819 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1).
As for the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In other words, “consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(1).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe, 826 F.3d at 189 (citation omitted).
Plaintiff argues that the ALJ did not adequately assess the opinions of Dr. Annette Macannuco-Winslow, Dr. W. Jay Krompinger, Dr. Jerrold Kaplan, Physical Therapist Joseph Morelli, Dr. Howard Lantner, and the state agency chart reviewer.
1. Dr. Macannuco-Winslow
In October 2012, Dr. Macannuco-Winslow (Plaintiff's pain management physician at the time), opined that Plaintiff could return to work with various limitations, including no lifting greater than 20 pounds; no repetitive pushing/pulling with force; no reaching above shoulder level; no repetitive reaching with force; no work involving the right or left leg; and no repetitive twisting, bending, squatting, or kneeling. R.p. 826. Further, Dr. Macannuco-Winslow opined that Plaintiff needed to change positions by standing, stretching, and walking and change positions every 20 minutes. R.p. 826.
Plaintiff appears to argue that the ALJ improperly “rejected” Dr. Macannuco-Winslow's opinion. Plaintiff asserts: “Despite previously characterizing [Plaintiff's] medical record as ‘relatively stable,' the ALJ rejected Dr. Macannuco-Winslow's restrictions because ‘he had not exhausted all treatment modalities including injections and the use of a TENS unit.'” ECF No. 11 at 16 (citing R.pp. 27, 29).
It is unclear what error Plaintiff believes occurred here. In any event, the undersigned has reviewed the ALJ's opinion and finds no reversible error. As an initial matter, the ALJ did not “reject” Dr. Macannuco-Winslow's opinion. Indeed, the ALJ found Dr. Macannuco-Winslow's opinion “somewhat persuasive.” R.p. 29. Consistent with that finding, the ALJ adopted several limitations Dr. Macannuco-Winslow suggested, including restrictions on overhead reaching with the left arm, and on activities that could involve “awkward positions,” like stooping or using ropes, ladders, and scaffolds. Compare R.p. 23 with R.p. 826.
Plaintiff appears to argue that the ALJ erred because the ALJ's reference to Plaintiff's improvement after October 2012 somehow conflicted with the ALJ's earlier finding that Plaintiff's medical records were “relatively stable.” ECF No. 11 at 16 (citing R.p. 27). Plaintiff fails to explain how this is error, much less why it warrants remand. Regardless, a review of the decision demonstrates that the ALJ first explained that the objective medical evidence-which generally showed normal or only mildly abnormal findings-did not reveal “any significant or persistent changes” and was thus “relatively stable.” R.pp. 24, 26-27. Separately, the ALJ turned to treatment history, writing that “the record also reveals that [Plaintiff's] treatment,” in the form of medications, injections, and a TENS unit, “adequately controlled [his] pain and other symptoms” and was “generally successful in controlling [his] symptoms.” R.pp. 24, 27 (emphasis added); see also R.p. 26 (noting 30% improvement with injections in 2014). There is no inconsistency between relatively stable (and normal) objective medical evidence on the one hand, and improved symptoms in response to treatment on the other.
Contrary to what Plaintiff appears to suggest, the ALJ sufficiently evaluated Dr. Macannuco-Winslow's opinion under the new regulations, such that the undersigned is not left to “guess” at why the ALJ found it “somewhat persuasive.” As to the supportability factor, the ALJ acknowledged that Dr. Macannuco-Winslow's examinations supported “limitations resulting from [Plaintiff's] musculoskeletal impairments,” a finding that worked in Plaintiff's favor and supported the RFC limitations detailed above. See R.p. 29; see also R.p. 25 (noting, at the time in October 2012, Plaintiff's “musculoskeletal examination revealed decreased left leg strength at 3/5 and an antalgic gait, bilaterally, loss of normal lordosis in the lumbosacral spine, bilateral spasms, left sided spasm and restricted and painful flexion and extension” but that Dr. Macannuco-Winslow recommended Plaintiff could return to work with restrictions); Hobbs v. Saul, No. 2:20CV00004, 2021 WL 1574421, at *10 (W.D. Va. Apr. 22, 2021) (noting, “where an ALJ analyzes evidence in one part of his decision, there is no requirement that he rehash that discussion in other parts of his analysis” (citation and internal quotation marks omitted)).
As to the consistency factor, the ALJ found Dr. Macannuco-Winslow's opinion was somewhat inconsistent with other evidence; specifically, evidence that Plaintiff's condition improved after Dr. Macannuco-Winslow rendered her opinion. Indeed, the ALJ explained that “treatment modalities including injections and the use of a TENS unit” in the years after Dr. Macannuco-Winslow's October 2012 opinion had “proved to increase his functional abilities.” R.p. 29. Additionally, the ALJ explained that Dr. Macannuco-Winslow's opinion was inconsistent with evidence that Plaintiff was “able to drive from Connecticut to [South] Carolina, work on cars and take care of his mother”-activities that further indicated Plaintiff was less limited than Dr. Macannuco-Winslow opined. R.p. 29.
Upon review, the ALJ sufficiently evaluated Dr. Macannuco-Winslow's opinion under the new regulations, such that the undersigned is not left to “guess” at why the ALJ found it “somewhat persuasive.” Thus, Plaintiff has failed to show why remand is warranted. See Brown, 873 F.3d at 267 (noting, to warrant remand, a claimant must either show the ALJ has incorrectly applied a legal standard or show the ALJ's factual findings are not supported by substantial evidence).
2. Dr. Krompinger
In October 2012, Dr. Krompinger (Plaintiff's orthopedist), stated after a follow-up appointment for back and leg pain that Plaintiff was “permanently and totally disabled from working at [his previous employer],” and should be “retrained in a sedentary position.” R.p. 849.
The ALJ found this opinion to be unpersuasive, explaining:
Statements that a claimant is “disabled,” “unable to work,” “can or cannot perform a past job[,”] “meets a Listing [,”] or the like, are not medical opinions but are administrative findings dispositive of a case, requiring familiarity with the regulations and legal standards set forth therein. Such issues are reserved to the Commissioner because we are responsible for making the determination or decision about whether an individual meets the statutory definition of disability, a statement on an issue reserved to the Commissioner is inherently neither valuable nor persuasive to us.R.p. 29.
Plaintiff argues the ALJ improperly rejected this statement as unpersuasive, “mischaracterizing it as a simple statement that [Plaintiff] was disabled or unable to work[.]” ECF No. 11 at 17. Plaintiff also argues that the ALJ discussed neither supportability nor consistency. None of Plaintiff's arguments warrant remand.
To the extent Plaintiff contends that the ALJ “mischaracterized” Dr. Krompinger's statement because it was more than a simple statement that he was disabled or unable to work, a review of Dr. Krompinger's opinion shows otherwise. The relevant part of Dr. Krompinger's statement was short, and provided only as assessment of whether Plaintiff could return to has prior employer, CNG:
ASSESSMENT: The situation was reviewed with him. He does have a two-level lumbar spinal fusion. He has made attempts to return back to work at CNG. I would consider him permanently and totally disabled from working at CNG as he has made very diligent efforts to try and fill a number of different positions in this organization.
PLAN: The ultimate goal for this gentleman would be to retrained in a sedentary position. I have suggested a repeat x-ray check in six months time.R.p. 849.
This short statement fails to provide a functional assessment of what Plaintiff could “still do despite [his] impairments” or whether he had “one or more impairment-related limitations or restrictions” with respect to exertional or non-exertional abilities, as is needed to constitute a “medical opinion” under the regulations. 20 C.F.R. § 404.1513(a)(2). Consequently, the ALJ reasonably determined that Dr. Krompinger's statement addressed an issue “reserved to the Commissioner,” i.e., whether Plaintiff was disabled. R.p. 29. Plaintiff points to Dr. Krompinger's reference to “sedentary work,” but that statement is not an opinion about Plaintiff's ability to function at the time the statement was rendered. At best, it was a proposal for Plaintiff's future employment, i.e., the “ultimate goal for this gentleman would be to retrain[ ]in a sedentary position.” R.p. 849 (emphasis added). Dr. Krompinger's mere use of the words “sedentary work” did not transform his statement into a medical opinion about Plaintiff's existing functional abilities. The ALJ did not err in characterizing Dr. Krompinger's statement. See, e.g., Jesse T. v. Kijakazi, No. 2:22-CV-101, 2022 WL 19561148, at *12 (E.D. Va. Nov. 21, 2022) (“Whether or not an individual can work is an issue left to the Commissioner, and Dr. Bonner's conclusory statement regarding Plaintiff's ability to work, without more, has little probative value.” (citing 20 C.F.R. § 404.1520b(c)(3)(i))), report and recommendation adopted, No. 2:22CV101, 2023 WL 2537283 (E.D. Va. Mar. 16, 2023).
To the extent Plaintiff argues that the ALJ erred in not addressing the supportability and consistency factors, such argument is without merit. Indeed, because Dr. Krompinger's statement addressed an issue reserved to the Commissioner, the ALJ was not required to discuss supportability and consistency. On this point, the regulations are clear: where a source states that a claimant is disabled or unable to work, that statement is “inherently neither valuable nor persuasive to the issue of whether [Plaintiff was] disabled,” and, therefore, an ALJ “will not provide any analysis about how [she] considered such evidence” in the decision, “even under § 404.1520c.” 20 C.F.R. § 404.1520b(c), (c)(3) (emphasis added); see also Dubose v. Kijakazi, No. 4:21-cv-03688-TER, 2023 WL 1960997, at *5 (D.S.C. Feb. 13, 2023) (affirming where ALJ did not discuss statements from a medical source, because the statements were “on issues reserved for the commissioner,” and the ALJ “was not required to analyze or show how such evidence was considered”). Plaintiff has not shown remand is warranted.
3. Dr. Kaplan
In October 2012, Dr. Kaplan wrote that Plaintiff completed a consultative examination, during which Plaintiff exhibited “no signs of excessive pain behavior” but had certain abnormalities, such as tenderness and a positive straight leg raising test. R.p. 721. He opined that Plaintiff had a “27% regional lumbar spine impairment,” and could not perform a job involving “repetitive bending,” nor one that involving lifting than 20-25 pounds. R.p. 721. Dr. Kaplan also advised Plaintiff to stop smoking because it may exacerbate his symptoms. R.p. 721.
Plaintiff argues that the ALJ “dismissed” Dr. Kaplan's opinion. Plaintiff argues: “[t]he ALJ observed that Dr. Kaplan ‘did not address the claimant's ability to sit, stand, and walk,' seemingly ignoring his lifting and postural restrictions. Again, the ALJ failed to address whether Dr. Kaplan's opinion was supported by his findings, his review of prior records, or the findings of other physicians who reviewed [Plaintiff's] case.” ECF No. 11 at 17.
Plaintiff's arguments are unpersuasive. As with Dr. Macannuco-Winslow's opinion, Plaintiff's argument that the ALJ “dismissed” Dr. Kaplan's opinion is simply incorrect. The ALJ found Dr. Kaplan's opinion “somewhat persuasive.” R.p. 29. This is, plainly, not a dismissal of the opinion.
Contrary to what Plaintiff appears to suggest, the ALJ sufficiently evaluated Dr. Kaplan's opinion under the new regulations, such that the undersigned is not left to “guess” at why the ALJ found it “somewhat persuasive.” As to supportability, the ALJ first acknowledged, “there is no doubt [that] the claimant . . . had severe musculoskeletal impairments, that limited him functionally,” (R.p. 29), a finding to Plaintiff's benefit. Thus, the ALJ acknowledged that Dr. Kaplan's findings were supported by his examination of Plaintiff by recognizing that there was “no doubt” Plaintiff's impairments limited him functionally. See R.p. 29; see also R.p. 25 (discussing Dr. Kaplan's October 2012 medical exam and findings). Although the ALJ did not specifically use the word “supportability” while evaluating Dr. Kaplan's opinion, the ALJ considered the supportability factor. See Todd A. v. Kijakazi, No. 3:20CV594 (DJN), 2021 WL 5348668, at *4 (E.D. Va. Nov. 16, 2021) (noting under the new regulatory scheme that “the ALJ need not necessarily use the words ‘supportability' or ‘consistency,' as long as the ALJ still performs the requisite analysis of these factors”); Hobbs, No. 2:20cv00004, 2021 WL 1574421, at *10 (finding that the ALJ sufficiently addressed the consistency factor even though he did not use the term “consistency” in evaluating the expert's opinion).
In assessing the persuasiveness of Dr. Kaplan's opinion, the ALJ began by noting “[a]s stated previously,” referencing his earlier consideration of Dr. Kaplan's findings. The undersigned can cross that logical bridge, and finds that the ALJ was considering how Dr. Kaplan's opinion was supported. See Hobbs, No. 2:20CV00004, 2021 WL 1574421, at *10 (noting, “where an ALJ analyzes evidence in one part of his decision, there is no requirement that he rehash that discussion in other parts of his analysis” (citation and internal quotation marks omitted)).
As to consistency, the ALJ explained that Dr. Kaplan's opinion was inconsistent with other evidence. Similar to Dr. Macannuco-Winslow's opinion, the ALJ explained Dr. Kaplan's opinion had been rendered in October 2012, “prior to the implementation of other treatment modalities such as injections, a TENS unit and additional physical therapy, which increased the claimant's functionality,” and therefore did not account for his improvement with these treatments. R.p. 29. Based on evidence reflecting Plaintiff's demonstrated improvements over time, and after Dr. Kaplan rendered his opinion, the ALJ reasonably concluded that Dr. Kaplan's opinion was only somewhat persuasive. R.p. 29.
Finally, to the extent Plaintiff appears to argue the ALJ improperly found Dr. Kaplan's opinion was less persuasive because it did not “address [Plaintiff's] ability to sit, stand, and walk,” such argument is unpersuasive. Indeed, sitting, standing, and walking are critical functions when evaluating how much a claimant can do in the workplace, and the ALJ was well within her right to find the opinion less persuasive because these functions were not discussed. See 20 C.F.R. § 404.1567. In any event, the ALJ did not rely on this reasoning to ignore the rest of Dr. Kaplan's opinion as Plaintiff claims (ECF No. 11 at 17), but instead explained that the opinion was inconsistent with record evidence that Plaintiff's functionality improved over time. R.p. 29.
Upon review, the ALJ sufficiently evaluated Dr. Kaplan's opinion under the new regulations, such that the undersigned is not left to “guess” at why the ALJ found it “somewhat persuasive.” Thus, Plaintiff has failed to show why remand is warranted. See Brown, 873 F.3d at 267 (noting, to warrant remand, a claimant must either show the ALJ has incorrectly applied a legal standard or show the ALJ's factual findings are not supported by substantial evidence).
4. PT Morelli
In September 2013, Plaintiff underwent a functional capacity evaluation with a physical therapist, Joseph Morelli. PT Morelli noted that Plaintiff could occasionally lift up to 37 pounds from waist to shoulder, push 42 pounds of force, and pull 35 pounds of force, but failed to complete lifting from floor level because of complaints of a significant increase of pain. Additionally, PT Morelli found that Plaintiff demonstrated some ability to reach to the floor and overhead, but could not complete these activities because of pain. R.pp. 724-25, 730. PT Morelli concluded that Plaintiff was “not recommended for a work environment.” R.p. 724.
The undersigned finds that ALJ also sufficiently evaluated the medical opinion of PT Morelli. Contrary to Plaintiff's chief complaint, the ALJ did not simply “focus” on the part of the opinion stating that Plaintiff was “not recommended for a work environment.” ECF No. 11 at 17; R.p. 724. Rather, the ALJ carved out that part of the opinion and rejected it (R.p. 30), consistent with § 404.1520b(c)(3), which as detailed above provides that statements on the ultimate question of whether a claimant can work are “inherently neither valuable nor persuasive.” 20 C.F.R. § 404.1520b(c)(3).
Otherwise, the ALJ examined the remainder of the opinion-reciting PT Morelli's findings regarding Plaintiff's ability to perform functions like lifting, pushing and pulling (R.p. 30)-and explained that PT Morelli's opinion was “[f]or the most part consistent . . . with the medical evidence as a whole showing that [Plaintiff's] musculoskeletal pain limits his ability to lift objects and reach overhead,” and consistent with Plaintiff's daily activities. R.p. 30 (emphasis added). Because the opinion was “for the most part” (but not entirely), consistent with the medical evidence as detailed earlier in the ALJ's RFC assessment, the ALJ reasonably declined to adopt PT Morelli's opinion that Plaintiff could only occasionally lift up to 37 pounds. See R.p. 724. Instead, the ALJ found Plaintiff capable of lifting up to 50 pounds. R.p. 23. Remand is not warranted.
5. Dr. Lantner
In July 2014, Dr. Lantner performed an independent medical evaluation. R.pp. 737-39. Dr. Lanter concluded that Plaintiff could perform “light duty work . . . with no repetitive bending and no frequent lifting over 20-25 pounds.” R.p. 739.
Plaintiff's challenges to the ALJ's evaluation for Dr. Lantner's opinion are unpersuasive. See ECF No. 11 at 17-18. As an initial matter, Plaintiff's assertion that the ALJ “rejected” Dr. Lantner's opinion is-again-simply incorrect. The ALJ did not reject the opinion, but instead found it “somewhat persuasive,” explaining that the opinion was supported by medical records reflecting that Plaintiff's “musculoskeletal impairments have resulted in functional limitations.” R.p. 30.
However, the ALJ explained that Dr. Lantner's opinion was inconsistent with the record because it did “not take into consideration the additional treatment modalities, which proved beneficial to his overall functionality and increased his exertional abilities prior to the date last insured,” like working on a car in November 2015. R.p. 30. Consistent with this finding, the ALJ's RFC finding aligned with many of Dr. Lantner's proposed functional limitations. For instance, consistent with his opinion that Plaintiff could have “no frequent lifting over 20-25 pounds,” (R.p. 739), the ALJ restricted Plaintiff to medium work (R.p. 23), which by definition, is limited to “frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). And, the ALJ accounted for Dr. Lantner's opinion that Plaintiff could not perform “repetitive bending” (R.p. 739), by limiting Plaintiff to frequent (not constant) stooping. R.p. 23.
While Plaintiff takes issue with the ALJ's decision to partially discount Dr. Lantner's opinion on the basis that Dr. Lantner only evaluated Plaintiff once, the regulations specifically provide that the length and nature of the treatment relationship is a valid consideration in evaluating persuasiveness. 20 C.F.R. § 404.1520c(c)(3) (directing ALJs to consider medical source's “relationship with the claimant,” including the “[l]ength of the treatment relationship,” and the purpose of the treatment relationship, and stating, “[t]he length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).”). Remand is not warranted.
6. State agency opinion
In August 2019, state agency medical consultant James Upchurch, M.D., concluded that Plaintiff could perform a range of light exertion work, with postural, manipulative, and environmental limitations. R.pp. 164-69. In support of this finding, Dr. Upchurch explained that the “objective evidence is not totally consistent with [Plaintiff's] allegations,” and, while it is “clear that the impairments are likely to produce some of the functional limitations that the claimant speaks of,” those limitations are “not totally consistent/persuasive and would not preclude regular work activity on a sustained basis.” R.p. 169.
Plaintiff's challenges to the ALJ's evaluation of the state agency consultant are unpersuasive. ECF No. 11 at 18. Again-contrary to Plaintiff's assertion-the ALJ did not “flatly reject[]” the state agency findings, but rather stated that those findings were “somewhat persuasive.” R.p. 31. In so doing, the ALJ explained that the findings were “consistent with the medical evidence as a whole,” which reflected that Plaintiff had “severe musculoskeletal impairments, that caused functional limitations.” R.p. 31. Yet, the ALJ explained, lesser restrictions were warranted “in light of the objective medical evidence . . . and numerous inconsistencies in the claimant's statements regarding his functional abilities.” R.p. 31.
Plaintiff argues that the ALJ erred in not reciting all of the objective medical evidence and the “numerous inconsistencies” to which she referred in evaluating the state agency findings. ECF No. 11 at 18 (citing R.p. 31). The ALJ already discussed the relevant evidence earlier in the decision and was not required to copy-and-paste that discussion into this section of the decision as well. See Caulkins v. Kijakazi, No. 20-1060, 2022 WL 1768856, at *5 (4th Cir. June 1, 2022) (noting “the ALJ need only review medical evidence once in his decision” (citation omitted)); Hobbs, No. 2:20CV00004, 2021 WL 1574421, at *10 (noting, “where an ALJ analyzes evidence in one part of his decision, there is no requirement that he rehash that discussion in other parts of his analysis” (citation and internal quotation marks omitted)).
As to all the medical opinion evidence, to the extent Plaintiff takes issue with the ALJ rejecting certain portions of those opinions, this is not a reason for remand. See Torres v. Saul, No. 2:19-CV-2000-MGL-MGB, 2020 WL 6264985, at *11 (D.S.C. July 22, 2020) (noting an ALJ “is not bound by [a] medical opinion in determining a claimant's RFC, nor is he required to adopt an opinion in its entirety” (citation and internal quotation marks omitted)), report and recommendation adopted, No. CV 2:19-02000-MGL, 2020 WL 5810400 (D.S.C. Sept. 30, 2020); Fray v. Berryhill, No. CV 6:16-2916-TMC, 2018 WL 1224687, at *3 (D.S.C. Mar. 9, 2018) (finding that the ALJ was not required to tailor the RFC to include every limitation in a doctor's opinion, provided the ALJ's decision is supported by substantial evidence). Thus, contrary to what Plaintiff appears to suggest, the ALJ's decision does not need to be remanded because the ultimate RFC determination-which is an issue reserved for the ALJ-differed slightly from opinion evidence the ALJ found somewhat persuasive in the record. See Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230-31 (4th Cir. 2011) (noting the RFC is “an administrative assessment made by the Commissioner based on all the relevant evidence in the case record” (citing 20 C.F.R. §§ 404.1546(c), 416.946(c); SSR 96-8p)); Koonce v. Apfel, 166 F.3d 1209, 1999 WL 7864, at *4 (4th Cir. 1999) (unpublished) (“The determination of a claimant's RFC and the application of vocational factors are reserved to the ALJ, who is not bound by medical opinion on these subjects.”); see also Wilkinson v. Comm'r Soc. Sec., 558 Fed.Appx. 254, 256 (3d Cir. 2014) (“The ALJ was not required to adopt all of Dr. Ali's opinion solely because she found the opinion as a whole persuasive[.]”).
Based upon a review of the record, the undersigned is not left to guess at why the ALJ concluded the way she did. See Mascio, 780 F.3d 636-37 (noting remand may be appropriate when courts are left to guess at how the ALJ arrived at their conclusions and meaningful review is frustrated). Plaintiff merely presents a disagreement with the ALJ's findings and fails to show reversible error. Consequently, the undersigned finds that the ALJ's persuasiveness evaluations of these medical opinions pass muster under substantial evidence review. See Biestek, 587 U.S. at 103 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
B. Subjective complaints
Plaintiff argues the ALJ did not properly evaluate his subjective complaints. ECF No. 11 at 18-20. SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3 (S.S.A. Oct. 25, 2017). In the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities[.]” Id. at *4.
The ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” Id. at *10. In evaluating the intensity, persistence, and limiting effects of the claimant's symptoms (including pain), the ALJ should consider the following non-exhaustive list of relevant factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms; and (6) any measures the claimant has used to relieve the symptoms. Id. at *7-8; 20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, in reaching his decision, the ALJ set out the proper two-step process for evaluating subjective complaints and discussed Plaintiff's testimony and the medical record in addressing both the objective and subjective evidence. See generally R.pp. 24-31. Specifically, at the first step, the ALJ agreed that Plaintiff's impairments “could reasonably be expected to cause some of the alleged symptoms,” but, at the second step, found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” R.p. 24. The ALJ then provided multiple reasons for this finding.
First, the ALJ considered the objective medical evidence. See 20 C.F.R. § 404.1529(c)(2). The ALJ explained that various physical examinations and diagnostic imaging evidence reflected “relatively stable objective findings and clinical signs” (R.p. 27) and “showed no more than mild to moderate abnormalities.” R.p. 31. The ALJ then turned to specifics. For instance, she explained that a September 2012 MRI showed “only mild multilevel paracentral annular bulging with no evidence of recurrent disc herniation or nerve root impingement” and was “fairly normal” according to Dr. Krompinger. R.p. 25 (citing R.pp. 634-35, 849)). Another MRI in December 2013 again reflected only mild abnormalities. R.p. 26. An October 2013 physical examination, the ALJ continued, showed that Plaintiff exhibited only “slight reduced motor strength . . . in the bilateral upper and lower extremities,” negative straight leg raising tests, normal gait, and normal reflexes. R.p. 26. Another examination in January 2016 by Dr. Grewal, as well as subsequent examinations with Dr. Grewal and other providers, showed no abnormal findings in Plaintiff's legs, normal reflexes, and normal gait; subsequent records did not “show any significant or persistent changes in these objective findings[.]” R.pp. 26-27 (citing R.pp. 792-821). Accordingly, the objective medical evidence did not support Plaintiff's claims regarding the extent of his symptoms. R.p. 27.
Turning to treatments and response to treatment, 20 C.F.R. § 404.1529(c)(3)(iv), (v), the ALJ explained that the evidence showed that “treatment adequately controlled [Plaintiff's] pain and other symptoms.” R.p. 27. For instance, the ALJ noted that epidural steroid injections improved Plaintiff's “pain level and mood,” and he reported a 30% improvement in his pain and activities of daily living. R.p. 26. Other treatments, including the TENS unit and prescription medications, also helped with his pain symptoms. R.p. 26.
The ALJ also pointed out various inconsistencies in Plaintiff's statements during the relevant period. For instance, he reported differing degrees of improvement with epidural steroid injections-he reported a significant, 30% improvement with epidural injections at certain appointments, but only 10% improvement during an examination with Dr. Lantner. R.p. 27 (citing R.p. 765). Also, Plaintiff continued to use controlled substances despite saying he had not done so, and he continued to smoke, despite claiming he had quit. R.pp. 27-28.
The ALJ also pointed out that Plaintiff remained able to perform daily activities that were inconsistent with the degree of limitation he alleged. 20 C.F.R. § 404.1529(c)(3)(i). Among other activities, the ALJ explained, Plaintiff felt he was able to exercise on a daily basis, to travel long distances from Connecticut to South Carolina with his family, work on a friend's car, and care for his ill mother. R.pp. 26, 28. Plaintiff's activities of daily living, the ALJ concluded, “show that he was capable of sustaining some basic work activity and not totally disabled.” R.p. 28.
The undersigned is unable to find reversible error in the ALJ's decision, as this was the proper analytical framework for the ALJ to follow. See 20 C.F.R. § 404.1529(b)-(c); Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (“What we require is that the ALJ sufficiently articulate [her] assessment of the evidence to ‘assure us that the ALJ considered the important evidence . . . [and to enable] us to trace the path of the ALJ's reasoning.'” (first alteration added) (citation omitted)). When objective evidence conflicts with a claimant's subjective statements, an ALJ is allowed to give the statements less weight. See Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996) (“Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment[.]”); Jolley v. Weinberger, 537 F.2d 1179, 1181 (4th Cir. 1976) (finding that the objective medical evidence, as opposed to the claimant's subjective complaints, supported an inference that she was not disabled). Thus, the ALJ properly considered inconsistencies between Plaintiff's testimony and other evidence of record in evaluating the credibility of Plaintiff's subjective complaints. See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005) (“Although we cannot make credibility determinations, we are empowered to review the ALJ's decisions for substantial evidence, and we find that substantial evidence supports the ALJ's credibility assessment.”); Hunter v. Sullivan, 993 F.2d 31, 35-36 (4th Cir. 1993) (reasoning an ALJ may properly consider inconsistencies between a claimant's testimony and the other evidence of record in evaluating the credibility of a claimant's subjective complaints).
Plaintiff's arguments to the contrary are unpersuasive. Plaintiff focuses on just two instances in which, he claims, the ALJ overstated or misstated the record: that Plaintiff had “worked on a friend's car” and “traveled from Connecticut to [South] Carolina” (ECF No. 11 at 19). Neither challenge demands remand.
The ALJ refers to North Carolina; however, the record reflects that Plaintiff moved to South Carolina in 2016. See, e.g., R.pp. 370, 780, 794.
As to working on a friend's car, Plaintiff highlights his testimony that he was only able to do this work a short amount of time because of a vertigo attack. ECF No. 11 at 19 (citing R.p. 69). But it was reasonable for the ALJ to conclude that Plaintiff's activity of working on a car's transmission-which, by his own telling, involved “crawling,” getting down on his knee, “roll[ing] onto [his] back,” and sliding under the car (R.p. 69)-was inconsistent with the degree of back and other musculoskeletal pain Plaintiff alleged. R.p. 29.
Plaintiff's attempt to discount his 600-plus mile trips from Connecticut to South Carolina is also unavailing. ECF No. 11 at 19. The ALJ specifically referenced those trips because they were inconsistent with Plaintiff's testimony that he “was unable to sit longer than 10 minutes.” R.p. 28. The ALJ's analysis was reasonable: even if Plaintiff drove only an hour at a time, as he claims (see R.p. 53; ECF No. 11 at 19), that activity necessarily involved sitting longer than 10 minutes at a time. And, even if he were primarily a passenger, riding in a car for hours at a time is inconsistent with his alleged limitations regarding his ability to sit or his need to constantly change positions. R.p. 29.
Based on the record and evidence, the undersigned does not find that the ALJ conducted an improper subjective complaint analysis in reaching her conclusions, nor does the undersigned find that the ALJ's decision otherwise reflects a failure to properly consider the record and evidence in this case. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting Plaintiff has the burden to show that he has a disabling impairment); Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir. 1986) (“If the Secretary's dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported.”). Accordingly, remand is not warranted. See Biestek, 587 U.S. at 103 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
C. Step Five determination
Plaintiff argues the ALJ failed to meet her burden at step five of the sequential evaluation process. Specifically, Plaintiff argues the ALJ erred in failing to consider the rules for transferability of skills for individuals of advanced age. ECF No. 11 at 20-21. Plaintiff maintains remand is warranted to obtain proper vocational expert testimony to determine whether he has transferrable skills. The Court disagrees.
At step five of the sequential evaluation, the ALJ is tasked with determining whether there are jobs that exist in significant numbers in the national economy that the claimant can perform. During this part of the evaluation, the ALJ typically considers whether the claimant has past relevant work experience and, if so, whether the claimant acquired skills from that work that can be transferred to other positions. 20 C.F.R. §§ 404.1568, 416.968.
Skills are transferrable “when the skilled or semi-skilled work activities [the claimant] did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work.” 20 C.F.R. § 404.1568(d)(1). Of course, “[t]his depends largely on the similarity of occupationally significant work activities among different jobs.” Id.
Notably, the rules regarding transferability of skills are different for persons of advanced age-individuals aged fifty-five or older at the time of the ALJ's decision. 20 C.F.R. § 404.1568(d)(4); see also 20 C.F.R. § 404.1563(e) (stating that “advanced age . . . significantly affects a person's ability to adjust to other work” and that there are “special rules for persons of advanced age”). According to the Code of Federal Regulations:
If you are of advanced age (age 55 or older), and you have a severe impairment(s) that limits you to sedentary or light work, [the Social Security Administration] will find that you cannot make an adjustment to other work unless you have skills that you can transfer to other skilled or semiskilled work (or you have recently completed education which provides for direct entry into skilled work) that you can do despite your impairment(s).20 C.F.R. § 404.1568(d)(4) (emphasis added).
Accordingly, as the regulations make clear, an ALJ must evaluate whether a claimant has transferable skills from past relevant work only if the claimant is of advanced age (55 or older)-which Plaintiff was in August 2016-and he has “a severe impairment(s) that limits [him] to sedentary or light work..” 20 C.F.R. § 404.1568(d)(4) (emphasis added); see also 20 C.F.R. § 404, subpt. P, app. 2, § 203.00(b) (“Even the adversity of advanced age (55 or over) and a work history of unskilled work may be offset by the substantial work capability represented by the functional capacity to perform medium work.”). Thus, by its terms, § 404.1568 and an analysis of transferability of skills does not apply where an ALJ finds a claimant can perform medium (or greater) exertion work. Jenkins v. Colvin, No. 0:12-cv-2273-DCN, 2014 WL 692896, at *3 (D.S.C. Feb. 21, 2014) (recognizing that “special rules for advanced age persons apply only when those people are limited to sedentary or light work”).
Here, because the ALJ found Plaintiff could perform a range of medium exertion work (R.p. 23), transferability of skills was not relevant, and the ALJ was not required to obtain testimony or make a finding on that issue. 20 C.F.R. § 404.1568(d)(4). While the ALJ had questioned the vocational expert on transferability during the hearing (R.pp. 79-83), that testimony would have become relevant only if the ALJ had limited Plaintiff to light or sedentary exertion work, which she did not do. Because the ALJ instead limited Plaintiff to medium exertion work, any testimony that the ALJ did take on that subject simply had no bearing on the outcome. See Jenkins, No. 0:12-CV-02273-DCN, 2014 WL 692896, at *3 (noting the ALJ found that the claimant had the RFC to perform unskilled medium work, and, as a result, “the special rules found in 20 C.F.R. § 404.1568(d)(4) do not apply to [Plaintiff]”); Garcia v. Kjakazi, No. 22-CV-60757, 2023 WL 2540441, at *6 (S.D. Fla. Mar. 1, 2023) (“Because Plaintiff retained the ability to perform medium work, the ALJ did not have to make a finding on the transferability of skills.”), report and recommendation adopted, No. 22-CV-60757-RAR, 2023 WL 2536491 (S.D. Fla. Mar. 16, 2023).
Ultimately, the ALJ's step five finding reasonably relied on the vocational expert's testimony that Plaintiff could perform several medium exertion, unskilled jobs without transferrable skills: hand packer (DOT No. 920.587-018; 300,000jobs in the national economy), wiper (DOT No. 742.687-010; 125,000jobs), and assembler (DOT No. 762.687-042; 175,000jobs). R.pp. 32-33, 84-85. Each occupation exists in significant numbers to support the ALJ's finding at step five of the sequential analysis. See McCall v. Saul, 844 Fed.Appx. 680, 681 (4th Cir. 2021) (citing with approval Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014), which held that 25,000 jobs nationwide is a large enough number to represent a significant number of jobs in several regions of the country). Thus, Plaintiff has not shown remand is warranted because of the ALJ's determination at step five.
Plaintiff's argument also fails because all of the occupations the vocational expert identified were unskilled. R.pp. 32-33, 84-85. See 20 C.F.R. § 404.1568(a); SSR 82-41, 1982 WL 31389, at *1 (“[I]f it is determined that there are no transferable skills, a finding of ‘not disabled' may be based on the ability to do unskilled work.”). Transferability is not a relevant consideration where, as here, a vocational expert identifies unskilled positions the Plaintiff could perform. See, e.g., Kirk E. L. v. Saul, No. 5:19-cv-1310-AFM, 2020 WL 1043441, at *5 (C.D. Cal. Mar. 4, 2020) (finding the issue of transferability was not relevant where vocational expert identified unskilled jobs); Spoon v. Berryhill, No. civ-18-580-D, 2019 WL 1234343, at *5 (W.D. Okla. Feb. 28, 2019) (“[T]he transferability of skills is not an issue because the jobs the ALJ determined Plaintiff could perform were medium, unskilled positions”), report and recommendation adopted, No. CIV-18580-D, 2019 WL 1234339 (W.D. Okla. Mar. 15, 2019).
V. CONCLUSION
It is recommended that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).