Opinion
2:21-cv-03975-DCC-MGB
10-26-2022
DAVID SUTHERLAND, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff David Sutherland (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends the Court reverse the Commissioner's decision and remand the case for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff initially filed applications for DIB and SSI on September 10, 2019, alleging a disability onset date of January 31, 2013. (R. at 14, 82, 92, 102-03, 105, 117, 129-30.) Plaintiff was thirty years old on his alleged disability onset date. (R. at 31, 82, 92, 105, 117.) Plaintiff claimed disability due to Charcot Marie Tooth disease.(R. at 82, 92, 105, 117.) Plaintiff has a high school education and past relevant work as a cashier, teacher's aide, and an electronic sales and service technician. (R. at 31, 90, 100, 114, 126.) His applications were denied initially and on reconsideration. (R. at 102-03, 129-30.) After a hearing before an Administrative Law Judge (“ALJ”) on January 29, 2021, the ALJ issued a decision on March 30, 2021, in which the ALJ found that Plaintiff was not disabled. (R. at 14-33.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
Charcot Marie Tooth disease is a group of inherited disorders that cause nerve damage, primarily in the arms and legs. (Dkt. No. 11 at 1.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through September 30, 2022. (11D/1)
(2) The claimant has not engaged in substantial gainful activity since January 31, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: cervical stenosis of the spinal canal, obesity, and provisional diagnosis of HSN type 1 charcot marie tooth disease pending genetic testing (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant is able to lift up to ten pounds occasionally and stand or walk for about two hours in an eight-hour workday and sit for up to six hours in an eight-hour workday. The claimant is limited to frequent reaching, handling, fingering and feeling.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on June 8, 1982 and was 30 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from January 31, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).(R. at 16-32.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).
“[T]he definition of disability is the same under both DIB and SSI....” Morgan v. Saul, 9:19-cv-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff asserts that the ALJ's decision is not supported by substantial evidence because the ALJ erred in assessing Plaintiff's residual functional capacity (“RFC”). (Dkt. No. 10 at 25 37.) Specifically, Plaintiff contends that the ALJ (1) failed to account for Plaintiff's insomnia and fatigue, and (2) improperly discounted certain medical opinions. (Id.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 11.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned agrees with Plaintiff and finds that the ALJ failed to provide substantial evidence to support his decision that Plaintiff could perform sedentary work with certain limitations. Accordingly, for the reasons set forth in further detail below, the undersigned recommends the Court reverse the Commissioner's decision and remand the case for further administrative proceedings.
I. The ALJ's Decision
The ALJ issued a thorough twenty-page decision, in which he considered Plaintiff's alleged impairments. (R. at 14-33.) The ALJ began by explaining that Plaintiff worked after the alleged onset date, but that his work activity was limited and did not rise to the level of substantial gainful activity. (R. at 16.) The ALJ then completed his Step Two analysis, explaining that Plaintiff's GERD and positive COVID antibody test were not severe impairments but that he had nonetheless considered them when assessing Plaintiff's residual functional capacity. (R. at 18.) The ALJ noted that Plaintiff's anxiety and depression were well-controlled and impacted Plaintiff's life minimally. (R. at 18.) The ALJ further explained that Plaintiff had no limitations in his ability to understand, remember, or apply information; mild limitations in his ability to interact with others; mild limitations in his ability to concentrate, persist, or maintain pace; and mild limitations in his ability to adapt or manage himself. (R. at 18-19.) The ALJ concluded that Plaintiff's severe impairments included: cervical stenosis of the spinal canal, obesity, and a provisional diagnosis of HSN Type 1 Charcot Marie Tooth disease. (R. at 17.)
The ALJ continued his discussion of Plaintiff's impairments at Step Four and addressed his reasons for finding Plaintiff could perform sedentary work with certain limitations. (R. at 2031.) The ALJ stated that he considered “all symptoms” when assessing Plaintiff's RFC. (R. at 20.) The ALJ first acknowledged Plaintiff's subjective statements as to his alleged limitations, including that Plaintiff's impairments restricted his ability to work because “he could not walk for long, sit for long or stand for long and he was limited with stair climbing and lifting heavy objects[].” (R. at 21.) The ALJ noted Plaintiff's testimony that “[i]f he is on the computer for a long time, his hands cramp up,” that he is a part-time substitute teacher with flexibility in his work schedule, and that he also works part-time for a computer business. (R. at 21.)
The ALJ continued recounting Plaintiff's testimony, highlighting that Plaintiff claims he can sit for an hour before having to get up, can walk for thirty minutes on a good day and only fifteen to twenty minutes on a bad day (which he has at least once per week), and experiences numbness in his feet, legs, arms, and hands. (R. at 21.) The ALJ described Plaintiff's testimony that he uses a cane a least once a week but noted that Plaintiff admitted he does not use the cane when teaching. (R. at 21.) The ALJ explained that Plaintiff takes Lyrica for neuralgia issues and sleeping pills at night but does not take opiates or “other strong medications.” (R. at 21.)
The ALJ recounted Plaintiff's testimony that his pain affects his work, but he can cancel his work as needed. (R. at 21.) He can type for thirty minutes at a time. (R. at 21.) He spends his days watching television and playing video games. (R. at 21.) He does not do yard work because it puts too much strain on his body. (R. at 21.) He does not do chores, although he sometimes helps his dad bring out the trash. (R. at 21.) He sometimes goes to the store. (R. at 21.) When he does, he always leans on a shopping cart to help him get around. (R. at 21.)
After reciting Plaintiff's testimony, the ALJ provided a detailed summary of Plaintiff's medical records. (R. at 21-25.) He concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (R. at 25.) The ALJ proceeded to discuss the specific evidence he found inconsistent with Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms. (R. at 25.)
Finally, the ALJ found that the opinion evidence supported his RFC assessment. The ALJ recounted the various medical opinions in the record and noted that Philip Way, M.D., Sandip Jain, M.D., and Christopher Bray, M.D., agreed that Plaintiff could perform sedentary work. (R. at 27.) The ALJ adopted this finding but rejected the remainder of these medical opinions, stating:
the opinion that the claimant would be limited to occasional handling and fingering is not supported by the treatment notes of these providers (Phillip Way, MD, Sandip Jain, MD, and Christopher Bray[, ]MD) and is inconsistent with the claimant's evidence of some atrophy in the hands but only mild reduction in grip strength with no more than mild reduction in strength noted in the upper extremities and most recently, normal strength noted in the upper extremities, with intact sensation and normal reflexes (Exhibits 9F, 14F). It is inconsistent with the claimant's normal physical exams on multiple occasions by Dr. Way (Exhibit 8F, p. 6, 26, 37, 62, 99, 118). This is inconsistent with the claimant's ability to run a computer IT business, which necessarily requires typing and the ability to finger and handle regularly, and overall the record supports the ability to perform handling, fingering, feeling and reaching on a frequent, rather than occasional, basis.
The opinion of the claimant's inability to stand for even two hours is not supported by adequate explanation and is inconsistent with the claimant's daily activities, including his ability to be an usher at church, be a substitute teacher, and go shopping in stores. It is inconsistent with the claimant's exams noting an overall normal gait, normal coordination, and normal strength in [his] lower extremities
(Exhibits 2F, 8F, 14F). The opinion as to the need to be off-work 15% of the workday is not persuasive as it is inconsistent with the claimant's testimony that he has not had to leave his substitute teaching job early, which is an 8-hour workday and is further inconsistent with his ability to work at SGA levels in 2013 and 2014. Additionally, Dr. Bray and Dr. Jain opine his limitations to be present well after his alleged onset date.
Dr. Way, Dr. Bray, and Dr. Jain's medical source statements are not fully supported by their own treating charts, and they are not entirely consistent with the objective detailed testing of Eric Andrew Lenehan MD on January 19, 2021 charting an extremely comprehensive and documented objective physical exam finding no grip or finger deficiencies (5/5) ....(R. at 27-28.)
The ALJ also considered the opinion of James Lewis, M.D., who opined that Plaintiff was capable of light work. (R. at 30.) The ALJ found that light exertional capabilities were supported by Plaintiff's admitted activities, but that “the RFC exertional level was reduced to sedentary based upon the persuasiveness of that assessment by treating providers Dr. Way, (10F/2) Dr. Bray (15F/2) and Dr. Jain, (13F/2) all who opined sedentary limitations, for various reasons.” (R. at 30.) The ALJ further noted that:
Dr. Lewis's assessment was completed in April 2020. So the subsequent record of Dr. Lenehan in January 19, 2021 at 14F/4, was analyzed to determine the appropriate manipulative limitations to assess, if any, in the RFC, based upon claimant's testimony of hand problems and Dr. Jain's occasional manipulative assessment at 13F/2. Dr. Lenehan tested and charted normal (5/5) bilateral grip and finger abduction charted R.at 14F/2, and this is highly persuasive in assessing the manipulative limitations [as] frequent as this is synergistically consistent with his admitted activities at school and in his computer business.(R. at 30.) Thus, the ALJ concluded that the opinion evidence, along with the other evidence in the record, supported his RFC finding that Plaintiff could perform sedentary work with additional limitations. (R. at 30-31.)
After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found that Plaintiff is capable of performing jobs that exist in significant numbers in the national economy. (R. at 31-32.) The ALJ therefore concluded that Plaintiff was not disabled during the period at issue. (R. at 32.)
II. RFC Analysis
As noted, Plaintiff contends that the ALJ erred at the fourth step of the sequential evaluation process and that his RFC is not supported by substantial evidence. (Dkt. No. 10.) More specifically, Plaintiff contends that the ALJ (1) failed to account for Plaintiff's insomnia and fatigue, and (2) improperly discounted certain medical opinions. (Id.) The undersigned considers these arguments, below.
A. Legal Standard
“[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). “The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis ....” SSR 96-8p (S.S.A. July 2, 1996); accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ “must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). “Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason.” Id. However, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). As the party attacking the Commissioner's decision, the claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
B. Plaintiff's Insomnia and Fatigue
Plaintiff argues that the ALJ “failed to make adequate findings related to Sutherland's insomnia and fatigue.” (Dkt. No. 10 at 26.) More specifically, Plaintiff argues that the ALJ “failed to indicate why Sutherland's RFC did not account for all of the limitations resulting from Sutherland's supported impairments,” such as insomnia and fatigue. (Id.) Plaintiff contends that this error cannot be considered harmless because the vocational expert (“VE”) testified that the need to be off task for fifteen percent of the workday, or the need to rest away from the workstation “for more than an hour” would preclude all work. (Id. at 27, citing to R. at 78, 80.) Plaintiff avers that “[e]ach of these limitations would logically flow from an impairment of severe insomnia and could also flow from limitations caused by non-severe insomnia” and the ALJ “did not summarize or point to any record evidence contradicting Sutherland's insomnia.” (Id.) Plaintiff contends that the ALJ therefore failed to provide an adequate discussion of Plaintiff's impairments and the reasons why limitations resulting from such impairments were excluded from Plaintiff's RFC. (Id.)
In response, the Commissioner contends that “the ALJ explicitly stated that ‘[t]he effects of the claimant's pain, fatigue, and medications have been considered in assessing,' the RFC, following a robust six-page single-spaced discussion of the medical evidence.” (Dkt. No. 11 at 21.) The Commissioner further argues that relevant medical opinions specifically keyed limitations relating to insomnia and fatigue to other symptoms and impairments, and that the ALJ considered those impairments-cervical stenosis, Charcot Marie Tooth disease, depression, and anxiety-at Step Two of the sequential evaluation process. (Id.) The Commissioner concedes that Plaintiff was diagnosed with insomnia but maintains that remand is not required on this basis because the ALJ is not required to refer to every diagnosis in the record, and because Plaintiff has not shown functional loss stemming from his insomnia.
Here, the undersigned agrees with Plaintiff. Although the ALJ thoroughly reviewed the record to determine Plaintiff's RFC, notably absent from that discussion is any mention of Plaintiff's diagnosed insomnia. (R. at 20-31.) The record reflects that Plaintiff was diagnosed with insomnia and contains various references to Plaintiff's struggle with the condition. (R. at 470, 494, 497, 559, 842, 849, 864, 895.) Regardless, the ALJ did not consider Plaintiff's insomnia at Step Two of the sequential evaluation process, nor did he discuss it at Step Four. (R. at 17-31.)
The Commissioner is correct that “[a] diagnosis alone is insufficient to establish severity.” (Dkt. No. 11 at 23.) However, Plaintiff's issue is not that the ALJ declined to find his insomnia severe. (Dkt. No. 10 at 26.) Rather, Plaintiff contends that the ALJ erred by failing to consider his insomnia at all. (Id.) The Commissioner contends that the ALJ's conclusory statement explaining that he considered Plaintiff's “pain, fatigue, and medications” when formulating Plaintiff's RFC was a sufficient discussion of Plaintiff's insomnia and fatigue, particularly because Plaintiff's fatigue was often attributed to certain of his other impairments. (Dkt. No. 11 at 21.) The undersigned finds this argument unconvincing.
The ALJ is required to build an accurate and logical bridge from the evidence to his conclusions. See Monroe, 826 F.3d at 189. Here, the record contains evidence that Plaintiff was diagnosed with insomnia and frequently experienced fatigue. (R. at 470, 494, 497, 505, 559, 842, 849, 864, 895.) While the record does reflect that Plaintiff's fatigue and trouble sleeping might be related to his cervical stenosis, Charcot Marie Tooth disease, depression, or anxiety, the record is inconclusive on this point. The ALJ was required to explain why these conditions did not necessitate additional limitations. See King, 615 F.2d at 1020 (explaining that the ALJ “must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim”). Because the ALJ failed to do so, he did not provide a logical and accurate bridge between the evidence and his conclusions. See Monroe, 826 F.3d at 189. Further, the undersigned cannot conclude that the ALJ's error was harmless, given the VE's testimony that the need to be off task for fifteen percent of the workday, or the need to rest away from the workstation “for more than an hour” would preclude all work. (R. at 78, 80.) Accordingly, remand is warranted.
C. Opinion Evidence
Under the Social Security Administration (“SSA”) regulations, the ALJ must consider each medical opinion and prior administrative medical finding in the record. 20 C.F.R. §§ 404.1520c, 416.920c (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”). For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence and prior administrative medical findings. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or prior administrative findings and need not give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions and prior administrative findings using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c).
20 C.F.R. § 416.920c has replaced the “Treating Physician Rule” for claims filed after March 27, 2017; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the Treating Physician Rule, a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 107 (4th Cir. 2020) (emphasis in original).
Supportability and consistency are the most important of the factors, and the ALJ must explicitly address how he considered these factors in evaluating each medical opinion and prior administrative finding. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. §§ 404.1520c(b)(2), 426.920c(b)(2). For supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are,” 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). Similarly, for consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical findings(s) is with evidence from other medical sources and nonmedical sources,” 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).
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 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, 983 F.3d at 98. Moreover, “an ALJ continues to have an obligation to include a narrative discussion describing how the evidence supports each conclusion.” Pearce v. Saul, No. CV 0:20-1623-PJG, 2020 WL 7585915, at *3 (D.S.C. Dec. 22, 2020) (internal quotations omitted); 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 contends that the ALJ “did not adequately explain how he considered the supportability and consistency factors when finding the treating opinions unpersuasive.” (Dkt. No. 10 at 32.) Specifically, Plaintiff claims that the ALJ improperly drew medical conclusions he was not authorized to draw, cherrypicked evidence from the record, and misstated Plaintiff's ability to perform daily activities. (Id. at 32-36.) Plaintiff also takes issue with the ALJ's finding that Dr. Lenehan's one-time, initial evaluation was more persuasive than opinions from three of Plaintiff's treating physicians (Dr. Way, Dr. Jain, and Dr. Bray). (Id. at 36-37.) The Commissioner counters that the ALJ provided a thorough, four-page review of the medical opinion evidence and properly evaluated those opinions under the appropriate regulatory framework. (Dkt. No. 11 at 24-29.)
Here, the undersigned agrees with Plaintiff. Though the ALJ provided a lengthy review of the medical opinions at issue, he did not appropriately consider the relevant factors and did not create the requisite accurate and logical bridge between the opinions and his conclusions. (R. at 27-31.) The ALJ summarized his review of the relevant opinions as follows:
On January 15, 2016, Dr. Phillip Way opined the claimant currently had very limited ability to work due to persistent nerve pain and general pain due to CMT. With standing for more than a few minutes, his pain worsened and with standing for more than an hour, his pain could sometimes linger for a couple of days. The claimant felt like the pain limited him to effectively perform most typical occupations (Exhibit 2F, p. 55). The opinion that the claimant is disabled is an opinion on an issue that is reserved to the Commissioner. As such, this opinion is neither inherently valuable nor persuasive. This opinion is not persuasive as it is vague with respect to specific functional abilities and it appears to be based on the claimant's self-reports rather than objective findings. This opinion also appears to be a temporary limitation by use of the word “currently;” however, it is not clear as to the specific time frame for which it pertains. It is inconsistent with subsequent records showing the claimant reporting control of his pain with chiropractic care and medications and therefore of limited probative value and not persuasive.
On December 18, 2020, Philip Way, M.D. opined the claimant would be limited to sedentary work but would be off-task 15% of the working day if he attempted to work full-time due to chronic pain and he would have to work away from the work station for more than an hour. He would be limited to occasional fingering and handling and these limitations had been present since 2014 (Exhibit 10F).
On January 14, 2021, Sandip Jain, M.D. opined the claimant was limited to sedentary work occasional fingering, handling and typing and he would be unable to stand and walk for even two hours in an eight-hour workday and these limits existed since at least January 2020 (Exhibit 13F).
On January 28, 2021, Christopher Bray, M.D. opined the claimant would be limited to sedentary work but would be off-task 15% of the work day and these limitations had been present since November 2018 (Exhibit 15F). These opinions are partially persuasive. A limitation to sedentary work is persuasive as supported by explanation and consistent with the claimant's history of CMT, as supported by nerve conduction studies, with some pain but overall stabilized with medication and therapy. This is consistent with the claimant's history of cervical stenosis, as supported by MRI showing significant problems at ¶ 5-6 but no significant problems at other levels and no evidence of myopathy, and his history of obesity, as well as the combined effects of his impairments.(R. at 27.)
The ALJ accepted the opinions to the extent they recommended sedentary work but dismissed all other recommended limitations. (R. at 27.) In making this conclusion, the ALJ considered the supportability and consistency of the opinions. Specifically, the ALJ determined the opinions were inconsistent with the providers' treatment notes and with Plaintiff's reported daily activities. (R. at 28.) As further support, the ALJ explained that the opinions were “not entirely consistent with the objective detailed testing of Eric Andrew Lenehan MD on January 19, 2021 charting an extremely comprehensive and documented objective physical exam finding no grip or finger deficiencies (5/5).” (R. at 28.) The ALJ determined that Dr. Lenehan's opinion following his one-time examination of Plaintiff was more persuasive than opinions from Plaintiff's treating providers, largely because Dr. Lenehan's conclusions were consistent with Plaintiff's reported daily activities. (R. at 28.)
The ALJ's analysis of the medical opinion evidence is flawed. First, the ALJ insinuates that the opinions are not supported by or consistent with the medical evidence in the record. (R. at 27-31.) However, Plaintiff's medical records, as a whole, depict chronic pain and numbness consistent with the limitations described in the opinions. (R. at 431, 433, 434, 437, 493, 495, 498, 505, 784-85, 805, 846, 849-51, 864, 896, 911.) Further, each of the opinions cites to objective examinations and diagnostic studies supporting the diagnoses explained and limitations proposed. (R. at 903, 910, 917.)
To the extent the ALJ discounts the opinions as relying on Plaintiff's self-reports, (R. at 27), this too is an error. Indeed, the record contains extensive treatment records from Drs. Way, Jain, and Bray, and those records contain significant examination findings and clinical observations. (R. at 427-534, 537-65, 646-778, 842-94); see Stanley v. Kijakazi, No. 5:20-cv-3030-RMG, 2021 WL 5768650, at *4 (D.S.C. Dec. 6, 2021) (finding ALJ's dismissal of medical opinion as “heavily reliant on the claimant's subject reports” is “rank speculation and is not supported by the record” because “[o]ne might reasonably conclude that after treating Plaintiff for a decade, Dr. Starling would have the ability to make findings and reach conclusions based on clinical observations and medical training and not merely depend on the ‘subjective reports' of her patient”).
Additionally, the ALJ relies on Plaintiff's daily activities to support his conclusion that Plaintiff does not require certain limitations outlined in the opinions, but he does not convey the appropriate context of Plaintiff's reported activities. (R. at 27-31.) For example, the ALJ relied largely on Plaintiff's part-time work to support his conclusion that Plaintiff does not require further limitations in his ability to stand, sit, walk, or handle and finger. (R. at 27-31.) The ALJ fails to note that Plaintiff's part-time work is incredibly flexible because he works for himself at the computer company, and the Human Resources coordinator at the school where he substitutes is well-aware of his impairments. (R. at 54-64.) The ALJ also fails to note that Plaintiff reported needing frequent breaks when typing and that he could not sit and type for long periods of time without hurting. (R. at 57.) Finally, Plaintiff testified that he had never needed to leave his substitute teaching job early, but he also reported that this was because he could call out of work “with no questions asked.” (R. at 64.) Ultimately, the ALJ mischaracterized Plaintiff's testimony regarding certain of his daily activities. A decision based on mischaracterizations is not supported by substantial evidence. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869).
Most pertinently, the ALJ purports to discount the opinions because they are inconsistent with and unsupported by the record; however, notably absent from his analysis is a discussion of the consistency among the three discounted opinions. (R. at 27-31.) Specifically, all of the opinions report significant pain, numbness, and weakness, prominently in Plaintiff's hands, feet, and legs. (R. at 903, 910, 917.) Two of the opinions suggest that Plaintiff will be off task for at least fifteen percent of the workday, (R. at 903 and 917), and two of the opinions propose further limitations relating to Plaintiff's ability to stand and walk (R. at 910 and 917). While the ALJ considered the opinions independently, he failed to consider the many consistencies among them. See Stanley, 2021 WL 5768650, at *3 (“[T]he evaluation of consistency must include the opinions and findings of other treating and examining physicians”); Flattery v. Comm'r of Soc. Sec. Admin., No. 9:20-cv-02600-RBH-MHC, 2021 WL 5181567, at *9 (D.S.C. Oct. 21, 2021) (finding ALJ did not adequately address consistency factor where there is not “any discussion of the consistency of Dr. Wildstein's opinion with other opinions in the record”), adopted sub nom. Flattery v. Kijakazi, 2021 WL 5180236 (D.S.C. Nov. 8, 2021).
Based on the foregoing, the ALJ has again failed to “build an accurate and logical bridge” from the evidence to his conclusions. See Monroe, 826 F.3d at 189. The undersigned is therefore left to guess as to why the ALJ found Dr. Leneman's single-visit summary more persuasive than three consistent opinions from Plaintiff's longtime treating physicians recommending additional limitations in Plaintiff's ability to stay on task; sit, stand, and walk; and reach, handle, finger, and feel. Remand is warranted on this basis, as well.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).